High Court of Australia
Encyclopedia
The High Court of Australia is the supreme court in the Australian court hierarchy
and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review
over laws passed by the Parliament of Australia
and the parliaments of the States
, and interprets the Constitution of Australia
. The High Court is mandated by section 71 of the Constitution, which vests in it the judicial power
of the Commonwealth of Australia. The High Court was constituted by the Judiciary Act 1903
. The High Court of Australia is located in Canberra
, Australian Capital Territory
.
(cases which originate in the High Court) and appellate jurisdiction (appeals made to the High Court from other courts). The High Court is the court of final appeal for the whole of Australia with the ability to interpret the common law
for the whole of Australia, not just the state or territory in which the matter arose. This is unlike other high courts, such as the Supreme Court of the United States
(though US federal courts do have the ability to shape US federal common law
). As such, the court is able to develop the common law
consistently across all of the states and territories. This role, alongside its role in constitutional interpretation, is one of the court's most significant. As Sir Owen Dixon
said on his swearing in as Chief Justice of Australia
:
This broad array of jurisdiction has enabled the High Court to take a leading role in Australian law, and has contributed to a consistency and uniformity among the laws of the different states.
Section 75 of the Constitution confers original jurisdiction in regard to "all matters":
The conferral of original jurisdiction creates some problems for the High Court. For example, challenges against immigration-related decisions are often brought against an officer of the Commonwealth within the original jurisdiction of the High Court.
Section 76 provides that Parliament may confer original jurisdiction in relation to matters:
Constitutional matters, referred to in section 76(i), have been conferred to the High Court by section 30 of the Judiciary Act 1903
. However, the inclusion of constitutional matters in section 76, rather than section 75, means that the High Court’s original jurisdiction regarding constitutional matters could be removed. In practice, section 75(iii) (suing the Commonwealth) and section 75(iv) (conflicts between states) are broad enough that many constitutional matters would still be within jurisdiction. The original constitutional jurisdiction of the High Court is now well established: the Australian Law Reform Commission
has described the inclusion of constitutional matters in section 76 rather than section 75 as "an odd fact of history." The 1998 constitutional convention
recommended an amendment to the constitution to prevent the possibility of the jurisdiction being removed by Parliament. Failure to proceed on this issue suggests that it was considered highly unlikely that Parliament would ever take this step.
The requirement of "a matter" in section 75 and section 76 of the constitution means that a concrete issue must need to be resolved, and the High Court cannot give an advisory opinion.
, from any federal court or court exercising federal jurisdiction (such as the Federal Court of Australia
), and from decisions made by one or more Justices exercising the original jurisdiction of the court.
However, section 73 allows the appellate jurisdiction to be limited "with such exceptions and subject to such regulations as the Parliament prescribes". Parliament has prescribed a large limitation in section 35A of the Judiciary Act 1903
. This requires "special leave" to appeal. Special leave is granted only where a question of law is raised which is of public importance; or involves a conflict between courts; or "is in the interests of the administration of justice". Therefore, while the High Court is the final court of appeal it cannot be considered to be a general court of appeal. The decision as to whether to grant special leave to appeal is determined by one or more Justices of the High Court (in practice, a panel of 2 or 3 judges). That is, Court exercises the power to decide which appeal cases it will consider.
The issue of appeals from the High Court to the United Kingdom's Judicial Committee of the Privy Council
was a significant one during the drafting of the Constitution, and it continued to be significant in the years after the court's creation. The final wording of section 74 prohibited appeals on constitutional matters involving disputes about the limits inter se
of Commonwealth or state powers, except where the High Court certified the appeal. It did so only once: in the case of Colonial Sugar Refining Co v Attorney-General (Commonwealth) (1912). After that case, in which the Privy Council refused to answer the constitutional questions put to it, the High Court never certified another inter se appeal. Indeed, in the case of Kirmani v Captain Cook Cruises Pty Ltd (No 2)
(1985), the court said that it would never again grant a certificate of appeal.
In general matters however, section 74 did not prevent the Privy Council from granting leave to appeal against the High Court's wishes, and the council did so often. In some cases, the council acknowledged that the Australian common law had developed differently from English law, and thus did not apply its own principles (for example, in Australian Consolidated Press Ltd v Uren (1967), or in Viro v The Queen (1978)), by using a legal fiction
which stated that different common law can apply to different circumstances. However, in other cases, the Privy Council enforced English decisions, overruling decisions by the High Court. In Parker v The Queen (1963), Chief Justice Sir Owen Dixon
led a unanimous judgment which rejected a precedent of the House of Lords
in DPP v Smith, saying that "I shall not depart from the law on this matter as we have long since laid it down in this Court and I think that Smith's case should not be used in Australia as authority at all"; the following year the Privy Council upheld an appeal, applying the House of Lords precedent.
Section 74 did provide that the parliament could make laws to prevent appeals to the council, and it did so, beginning in 1968, with the Privy Council (Limitation of Appeals) Act 1968, which closed off all appeals to the Privy Council in matters involving federal legislation. In 1975, the Privy Council (Appeals from the High Court) Act 1975 was passed, which had the effect of closing all routes of appeal from the High Court. Appeals from the High Court to the Privy Council are now only theoretically possible in inter se
matters if the High Court grants a certificate of appeal under section 74 of the Constitution. As noted above, the High Court indicated in 1985 it would not grant such a certificate in the future, and it is practically certain that all future High Courts will maintain this policy. In 1986, with the passing of the Australia Acts
by both the UK Parliament
and the Parliament of Australia
(with the ratification of the States
), appeals to the Privy Council from state Supreme Courts were closed off, leaving the High Court as the only avenue of appeal.
and Australia in 1976, in application of article 57 of the Constitution of Nauru
, the High Court of Australia is the ultimate court of appeal for the sovereign Republic of Nauru, formerly an Australian colony. Thus the High Court may hear appeals from the Supreme Court of Nauru
in both criminal and civil cases, with certain exceptions; in particular, no case pertaining to the Constitution of Nauru may be decided by the Australian court.
, which involved the great expense of physically travelling to London
. As such, some politicians in the colonies wanted to have a new court which could travel between the colonies hearing appeals.
Following Earl Grey's 1846 proposal for federation of the Australian colonies, an 1849 report from the Privy Council of the United Kingdom
suggested that a national court be created. In 1856, the then Governor of South Australia, Richard Graves MacDonnell
, suggested to the Government of South Australia
that they and the other colonies should consider establishing a court of appeal which would hear appeals from the Supreme Courts in each colony, and in 1860 the Parliament of South Australia
passed legislation encouraging MacDonnell to put forward the idea to his colleagues in the other colonies. However, only the Government of Victoria
seriously considered this proposal.
At an inter-colonial conference in 1870 in Melbourne
, Victoria
, the idea of an inter-colonial court was again raised, and subsequently a Royal Commission
was established in Victoria, to investigate options not only for establishing a court of appeal, but for unifying extradition
laws between the colonies and other similar matters. A draft bill establishing a court was put forward by the Commission, but it completely excluded appeals to the Privy Council, which reacted critically and prevented any serious attempts to implement the bill in London (before federation
, any laws affecting all the colonies would have to be passed by the British Imperial Parliament in London).
In 1880, another inter-colonial conference was convened, which proposed the establishment of an Australasian Court of Appeal. This conference was more firmly focused on having an Australian court. Another draft bill was produced, providing that judges from the colonial Supreme Courts would serve one-year terms on the new court, with one judge from each colony at a given time. New Zealand, which was at the time also considering joining the Australian colonies in federation, was also to be a participant in the new court. However, the proposal retained appeals from colonial Supreme Courts to the Privy Council, which some of the colonies disputed, and the bill was eventually abandoned.
The Constitutional Conventions
of the 1890s, which met to draft an Australian Constitution
, also raised the idea of a federal Supreme Court. Initial proposals at a conference in Melbourne
in February 1890 led to a convention in Sydney
in March and April 1891, which produced a draft constitution. The draft included the creation of a Supreme Court of Australia, which would not only interpret the Constitution, like the United States Supreme Court, but also would be a court of appeal from the state Supreme Courts. The draft effectively removed appeals to the Privy Council, allowing them only if the British monarch gave leave to appeal and not allowing appeals at all in constitutional matters.
This draft was largely the work of Sir Samuel Griffith
, then the Premier of Queensland, later Chief Justice of Queensland and the first Chief Justice of Australia
. Other significant contributors to the judicial clauses in the draft included Attorney-General of Tasmania Andrew Inglis Clark
, who had prepared his own constitution prior to the convention. Inglis Clark's most significant contribution was to give the court its own constitutional authority, ensuring the separation of powers
; the original formulation from Griffith, Edmund Barton
and Charles Kingston
provided only that the parliament could establish a court.
At the later conventions, in Adelaide
in 1897, in Sydney later the same year and in Melbourne in early 1898, there were changes to the earlier draft. In Adelaide, the name of the court was changed from Supreme Court of Australia to High Court of Australia. Many people also opposed the new court completely replacing the Privy Council: many large businesses, particularly those which were subsidiaries of British companies or regularly traded with the United Kingdom, preferred for business reasons to keep the colonies under the unified jurisdiction of the British courts, and petitioned the conventions to that effect. Other arguments posited against removing Privy Council appeals were that Australian judges were of a poorer quality than English ones, and that without the Council's oversight, the law in the colonies risked becoming different from English law. Some politicians, such as Sir George Dibbs
, supported the petitioners, but others, including Alfred Deakin
, supported the design of the court as it was. Inglis Clark took the view that the possibility of divergence was a good thing, for the law could adapt appropriately to Australian circumstances. Despite the debate, the portions of the draft dealing with the court remained largely unchanged, as the delegates focused on different matters.
After the draft had been approved by the electors of the colonies, it was taken to London in 1899, for the assent of the British Imperial Parliament. However the issue of Privy Council appeals remained a sticking point with a number of Australian and British politicians, including the Secretary of State for the Colonies
, Joseph Chamberlain
, the Chief Justice of South Australia, Sir Samuel Way
, and the Chief Justice of Queensland, Sir Samuel Griffith
. Indeed, in October 1899, Griffith made representations to Chamberlain soliciting suggestions from British ministers for alterations to the draft, and offering some alterations of his own. Indeed, such was the effect of these and other representations that Chamberlain called for delegates from the colonies to come to London to assist with the approval process, with a view to their approving any alterations that the British government might see fit to make; delegates were sent, including Deakin, Barton and Charles Kingston
, although they were under instructions that they would never agree to changes.
After intense lobbying both in Australia and in the United Kingdom, the Imperial Parliament finally approved the draft constitution, albeit with an altered section 74, which represented a compromise between the two sides: there would be a general right of appeal from the High Court to the Privy Council, except that the Parliament of Australia
would be able to make laws restricting this avenue, and also that appeals in inter se matters (matters concerning the boundary between and limits of the powers of the Commonwealth and the powers of the states) were not as of right, but had to be certified by the High Court.
to make laws about the structure and procedure of the court. Some of the members of the First Parliament, including Sir John Quick
, then one of the leading legal experts in Australia, opposed legislation to set up the court. Even H. B. Higgins
, who was himself later appointed to the court, objected to setting it up, on the grounds that it would be impotent while Privy Council appeals remained, and that in any event there was not enough work for a federal court to make it viable.
In 1902, the then Attorney-General
Alfred Deakin introduced the Judiciary Bill 1902 into the parliament. Although Deakin and Griffith had produced a draft bill as early as February 1901, it was continually delayed by opponents in the parliament, and the success of the bill is generally attributed to Deakin's passion and effort in pushing the bill through the parliament despite this opposition. Deakin had proposed that the court be composed of five judges, specially selected to the court; opponents instead proposed that the court should be made up of state Supreme Court justices, taking turns to sit on the High Court on a rotation basis, as had been mooted at the Constitutional Conventions a decade before. Deakin eventually negotiated amendments with the opposition
, reducing the number of judges from five to three, and eliminating financial benefits such as pensions.
At one point, Deakin even threatened to resign as Attorney-General due to the difficulties he faced. In what is now a famous speech, Deakin gave a second reading
to the House of Representatives
, lasting three and a half hours, in which he declared:
Deakin's friend, painter Tom Roberts
, who viewed the speech from the public gallery, declared it Deakin's "magnum opus". The Judiciary Act 1903
was finally passed on 25 August 1903, and the first three justices, Chief Justice
Sir Samuel Griffith
and Justices Sir Edmund Barton
and Richard O'Connor were appointed on 5 October of that year. On 6 October, the court held its first sitting in the Banco Court in the Supreme Court of Victoria
.
, the court continued to use that court until 1928, when a dedicated courtroom was built in Little Bourke Street
, next to the Supreme Court of Victoria
, which provided the court's Melbourne sitting place and housed the court's principal registry
until 1980. The court also sat regularly in Sydney
, where it originally shared space in the Criminal Courts in the suburb of Darlinghurst
, before a dedicated courtroom was constructed next door in 1923.
The court travelled to other cities across the country, where it did not have any facilities of its own, but used facilities of the Supreme Court in each city. Alfred Deakin had envisaged that the court would sit in many different locations, so as to truly be a federal court. Shortly after the court's creation, Chief Justice Griffith established a schedule for sittings in state capitals: Hobart
, Tasmania
in February, Brisbane
, Queensland
in June, Perth
, Western Australia
in September and Adelaide
, South Australia
in October; it is said that Griffith established this schedule because those were the times of year he found the weather most pleasant in each city. The tradition remains to this day, although most of the court's sittings are now conducted in Canberra
.
Sittings were dependent on the caseload, and to this day sittings in Hobart occur only once every few years. There are annual sittings in Perth, Adelaide and Brisbane for up to a week each. During the Great Depression
, sittings outside of Melbourne and Sydney were suspended in order to reduce costs.
During World War II
, the court faced a period of change. The Chief Justice, Sir John Latham
, served from 1940 to 1941 as Australia's first ambassador to Japan
, although his activities in this role were limited by the mutual assistance pact that Japan had entered into with the Axis powers
before he could arrive in Tokyo
, and were curtailed by the commencement of the Pacific War
. Justice Sir Owen Dixon
was also absent for several years, while he served as Australia's minister to the United States
in Washington
. Sir George Rich
was Acting Chief Justice in Latham's absence. There were many difficult cases concerning the federal government
's use of the defence power during the war.
, the court's workload continued to grow, particularly from the 1960s onwards, putting pressures on the court. Sir Garfield Barwick
, who was Attorney-General
from 1958 to 1964, and from then till 1981 Chief Justice
, proposed that more federal courts be established, as permitted under the Constitution. In 1976 the Federal Court of Australia
was established, with a general federal jurisdiction, and in more recent years the Family Court
and Federal Magistrates Court have been set up to reduce the court's workload in specific areas.
Robert Menzies
had established a plan to develop Canberra, and construct other important national buildings. In 1959, a plan featured a new building for the High Court on the shores of Lake Burley Griffin
, next to the location for the new Parliament House
, and the National Library of Australia
. This plan was abandoned in 1968, and the location of the Parliament was moved, later settling on the present site on Capital Hill.
In March 1968, the government announced that the court would move to Canberra. In 1972 an international competition was held attracting 158 entries. In 1973 the firm of Edwards Madigan Torzillo Briggs was declared the winner of the two-stage competition. Architect Chris Kringas was the Principal Designer and Director in charge of the design team that included Feiko Bouman and Rod Lawrence. In 1975, only one month before construction began, Kringas died aged 38. Following his death, Architect Hans Marelli and Colin Madigan
supervised the construction of the design.
Construction began in April 1975 on the shore of Lake Burley Griffin, in the Parliamentary Triangle. The site is just to the east of the axis running between Capital Hill and the Australian War Memorial
. The High Court building houses three courtrooms, Justices' chambers, and the Court's main registry, library, and corporate services facilities. It is an unusual and distinctive structure, built in the brutalist style, and features an immense public atrium with a 24 metre high roof. The neighbouring National Gallery was also designed by the firm of Edwards Madigan Torzillo and Briggs. There are similarities between the two buildings in material and style but significant differences in architectural form and spatial concept. The building was completed in 1980, and the majority of the court's sittings have been held in Canberra since then.
The High Court and National Gallery Precinct were added to the Australian National Heritage List
in November 2007.
of the time.
As the first High Court, the court under Chief Justice Sir Samuel Griffith
had to establish its position as a new court of appeal for the whole of Australia, and had to develop a new body of principle for interpreting the Constitution of Australia
and federal legislation. Griffith himself was very much the dominant influence on the court in its early years, but after the appointment of Sir Isaac Isaacs
and H. B. Higgins
in 1906, and the death of foundation Justice Richard O'Connor
, Griffith's influence began to decline.
The court was keen to establish its position at the top of the Australian court hierarchy
. In Deakin v Webb (1904) Griffith criticised the Supreme Court of Victoria
for following a Privy Council
decision about the Constitution of Canada
, rather than following the High Court's own decision on the Australian Constitution.
In Australian constitutional law
, the early decisions of the court were influenced by United States constitutional law
. In the case of D'Emden v Pedder
(1904), which involved the application of Tasmania
n stamp duty
to a federal official's salary
, the court adopted the doctrine of implied immunity of instrumentalities which had been established in the United States Supreme Court
case of McCulloch v. Maryland
(1803). That doctrine established that any attempt by the federal government to interfere with the legislative or executive power of the states
was invalid, and vice versa. Accompanying that doctrine was the doctrine of reserved State powers
, which was based on the principle that the powers of the federal parliament
should be interpreted narrowly, to avoid intruding on areas of power traditionally exercise by the state parliaments. The concept was developed in such cases as Peterswald v Bartley
(1904), R v Barger
(1908) and the Union Label case (1908).
Together the two doctrines helped smooth the transition to a federal system of government, and "by preserving a balance between the constituent elements of the Australian federation, probably conformed to community sentiment, which at that stage was by no means adjusted to the exercise of central power." The court had a generally conservative view of the Constitution, taking narrow interpretations of section 116 (which guarantees religious freedom) and section 117 (which prevents discrimination on the basis of someone's state of origin), interpretations that were to last well into the 1980s.
Two of the original judges of the Court, Griffith and Sir Edmund Barton
, were frequently consulted by governors-general, including on the exercise of the reserve powers. This practice of consultation has continued from time to time since.
(later Sir Adrian) became Chief Justice on 18 October 1919, and less than three months later, foundation Justice Sir Edmund Barton
died, leaving no original members. The most significant case of the era was the Engineers case (1920), decided at the beginning of Knox's term. In that case, the doctrines of reserved State powers and implied immunity of instrumentalities were both overturned, and the court entered a new era of constitutional interpretation in which the focus would fall almost exclusively on the text of the Constitution, and in which the powers of the federal parliament
would gain increasing importance.
Knox was knighted in 1921, the only Chief Justice to be first knighted during his term. Some of the Knox court's early work related to the aftermath of World War I
. In Roche v Kronheimer (1921), the court upheld federal legislation which allowed for the making of regulations to implement Australia's obligations under the Treaty of Versailles
. The majority decided the case on the defence power
, but Higgins decided it on the external affairs power
, the first case to decide that the external affairs power could be used to implement an international treaty in Australia.
Sir Isaac Isaacs
was Chief Justice for only forty-two weeks, before leaving the court to be appointed Governor-General of Australia
. Isaacs was ill for much of his term as Chief Justice, and few significant cases were decided under his formal leadership; rather, his best years were under Knox, where he was the most senior puisne
Justice and led the court in many decisions.
Sir Frank Gavan Duffy
was Chief Justice for four years beginning in 1931, although he was already 78 when appointed to the position and did not exert much influence, given that (excluding single-Justice cases) he participated in only 40 per cent of cases in that time, and regularly gave short judgments or joint judgments with other Justices. In the context of the Great Depression
, the court was reduced to six Justices, resulting in many tied decisions which have no lasting value as precedent
.
During this time, the court did decide several important cases, including Attorney-General (New South Wales) v Trethowan (1931), which considered Premier of New South Wales Jack Lang
's attempt to abolish the New South Wales Legislative Council
, and the First State Garnishee case (1932), which upheld federal legislation compelling the Lang government to repay its loans. Much of the court's other work related to legislation passed in response to the Depression.
The court under Chief Justice Sir John Latham, who came to the office in 1935, was punctuated by World War II
. Although it dealt with cases in other areas, its most important and lasting work related to wartime legislation, and the transition back to peace following the war. The court upheld much legislation under the defence power
, interpreting it broadly wherever there was a connection to defence purposes, in cases such as Andrews v Howell (1941) and de Mestre v Chisholm (1944). In general, the Curtin
Labor
government was rarely successfully challenged, the court recognising the necessity that the defence power permit the federal government to govern strongly. The court also allowed the federal government to institute a national income tax
scheme in the First Uniform Tax case
(1942), and upheld legislation allowing the proclamation of the pacifist Jehovah's Witnesses
religion as a subversive organisation, in the Jehovah's Witnesses case
(1943).
The court reined in the wide scope of the defence power after the war, allowing for a transitional period. It struck down several key planks of the Chifley
Labor government's reconstruction program, notably an attempt to nationalise
the banks in the Bank Nationalisation case
(1948), and an attempt to establish a comprehensive medical benefits scheme in the First Pharmaceutical Benefits case
(1945). However the court also famously struck down Menzies
Liberal
government legislation banning the Communist Party of Australia
in the Communist Party case
(1951), Latham's last major case.
Apart from the wartime cases, the Latham court also developed the criminal
defence of honest and reasonable mistake of fact, for example in Proudman v Dayman (1941). It also paved the way for the development of the external affairs power
by upholding the implementation of an air navigation treaty in R v Burgess; Ex parte Henry
(1936).
Under Chief Justice Sir Owen Dixon
, who was elevated to that role in 1952 after 23 years as a puisne
Justice, the court enjoyed its most successful period, with British
judge, Master of the Rolls
Lord Denning, describing the time as the court's "Golden Age". Dixon, widely regarded as Australia's greatest judge, had a commanding personal and legal influence over the court in this time, measurable in the rise in joint judgments (many of which were led by Dixon) and good relations between the Justices.
While there were fewer cases which tested the limits of federal power, which was probably due to the Menzies government which was firmly entrenched in its conservative phase throughout Dixon's tenure, the court did decide several important constitutional cases. Dixon led the court in firmly establishing the separation of powers
for the judiciary
in the Boilermakers' case
(1956), and the court also upheld the continuing existence of the federal government's income tax scheme in the Second Uniform Tax case
(1957).
During Dixon's time as Chief Justice, the court came to adopt several of the views that Dixon had advanced in minority opinions in years prior. In several cases, the court upheld Dixon's interpretation of section 92 of the Australian Constitution (one of the most troublesome sections of the Constitution), which he regarded as guaranteeing a constitutional right to engage in interstate trade, subject to reasonable regulation. It also followed Dixon's interpretation of section 90 (which prohibits the states from exacting duties of excise
), although both these interpretations were ultimately abandoned many years later.
came to the court as Chief Justice in 1964. A significant decision of the Barwick court marked the beginning of the modern interpretation of the corporations power
, which had been interpreted narrowly since 1909. The Concrete Pipes case
(1971) established that the federal parliament could exercise the power to regulate at least the trading activities of corporations, whereas earlier interpretations had allowed only the regulation of conduct or transactions with the public.
The court decided many other significant constitutional cases, including the Seas and Submerged Lands case (1975), upholding legislation asserting sovereignty over the territorial sea; the First (1975) and Second (1977) Territory Senators cases, which concerned whether legislation allowing for the mainland territories
to be represented in the Parliament of Australia
was valid; and Russell v Russell (1976), which concerned the validity of the Family Law Act 1975
. The court also decided several cases relating to the historic 1974 joint sitting
of the Parliament of Australia, including Cormack v Cope (1974) and the Petroleum and Minerals Authority case (1975).
The Barwick court decided several infamous cases on tax avoidance and tax evasion
, almost always deciding against the taxation office. Led by Barwick himself in most judgments, the court distinguished between avoidance (legitimately minimising one's tax obligations) and evasion (illegally evading obligations). The decisions effectively nullified the anti-avoidance legislation, and led to the proliferation of avoidance schemes in the 1970s, a result which drew much criticism upon the court.
Sir Harry Gibbs
was appointed as Chief Justice in 1981. Under his leadership, the court moved away from the legalism and conservative traditions which had characterised the Dixon and Barwick courts.
The Gibbs court made several important decisions in Australian constitutional law
. It allowed the Federal Parliament to make very wide use of the external affairs power
, by holding that this power could be used to implement treaties
into domestic law with very few justiciable limits. In Koowarta v Bjelke-Petersen
(1982) four judges to three upheld the validity of the Racial Discrimination Act 1975
, although no single view had majority support. However, in the Tasmanian Dams case
(1983), a majority of the court upheld federal environmental legislation under the power.
The court also adopted a more expansive interpretation of the corporations power
. In the Actors Equity case (1982), the court upheld regulations which, although they did not directly regulate corporation
s, indirectly protected corporations. In the Tasmanian Dams case, the court indicated that it would interpret the power to uphold legislation regulating the non-trading activities of corporations, although it did not decide the case on that basis. The external affairs power and the corporations power have both been increasingly relied on by the federal government to extend its authority in recent years.
In administrative law
, the court expanded on the doctrines of natural justice
and procedural fairness
in Kioa v West
(1985). Although Gibbs himself dissented on those points, he did decide that executive decision makers were obliged to take humanitarian
principles into consideration. Outside of specific areas of law, the court was also involved in several cases of public significance, including the Chamberlain case (1984), concerning Lindy Chamberlain
, and A v Hayden (1984), concerning the botched ASIS
exercise at the Sheraton Hotel in Melbourne.
Sir Anthony Mason became Chief Justice in 1987. The Mason court was very stable with only one change in the bench in its eight years, the appointment of Michael McHugh
after Sir Ronald Wilson
's retirement. The court under Mason was widely regarded as the most liberal bench in the court's history.
The Mason court made many important decisions in all areas of Australian law. One of its first major cases was Cole v Whitfield
(1988), concerning the troublesome section 92 of the Australian Constitution, which had been interpreted inconsistently and confusingly since the beginning of the court. For the first time, the court referred to historical materials such as the debates of the Constitutional Conventions
in order to ascertain the purpose of the section, and the unanimous decision indicated "a willingness to overturn established doctrines and precedents perceived to be no longer working", a trend which typified the Mason court.
The most popularly significant case decided by the Mason court was the Mabo case (1992), in which the court found that the common law
was capable of recognising native title
. The decision was one of the High Court's most controversial of all time, and represented the tendency of the Mason court to receive "high praise and stringent criticism in equal measure." Other controversial cases included the War Crimes Act case
(1991), regarding the validity of the War Crimes Act 1945; Dietrich v The Queen
(1992), in which the court found that a lack of legal representation in a serious criminal case can result in an unfair trial; Sykes v Cleary (1992), regarding the disputed election of Phil Cleary
; and Teoh's case
(1995), in which the court held that ratification
of a treaty by the executive could create a legitimate expectation that members of the executive would act in accordance with that treaty.
The court developed the concept of implied human rights in the Constitution, in cases such as Australian Capital Television Pty Ltd v Commonwealth
(1992), Nationwide News v Wills (1992) and Theophanous v Herald and Weekly Times (1994), in which the court recognised an implied freedom of political communication arising from the nature of the Constitution in laying out a system of representative government.
In other areas of law, the court developed doctrines of equity in relation to commercial law and contract law
, in cases such as Waltons Stores v Maher (1988) and Trident General Insurance v McNiece (1988), and made significant developments in tort law
, in cases such as Rogers v Whitaker (1992) and Burnie Port Authority v General Jones (1994).
Sir Gerald Brennan
succeeded Mason in 1995. In contrast to the previous court, the Brennan court had many changes in its membership despite being only three years long. The court decided many significant cases.
In Ha v New South Wales
(1997) the court invalidated a New South Wales
tobacco
licensing scheme, reining in the licensing scheme exception to the prohibition states levying excise
duties, contained in section 90 of the Australian Constitution. While it did not overturn previous cases in which schemes had been upheld, it did emphasise that the states could not stray too far from the constitutional framework.
The Brennan court made a number of significant decisions in relation to the judiciary of Australia
. In Grollo v Palmer (1995) and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1998), the court developed the persona designata
doctrine, and in Kable v DPP (1997), the court rejected attempts by the Parliament of New South Wales
to establish a system of preventative detention, and found that the states do not have unlimited ability to regulate their courts, given the place of the courts in the Australian court hierarchy
.
The court decided several cases relating to the implied freedom of political communication developed by the Mason court, notably Lange v Australian Broadcasting Corporation
(1997) and Levy v Victoria (1997). It also decided several native title cases, including the controversial Wik case
(1996).
(the first Chief Justice not to be knighted) was appointed Chief Justice in 1998. The court under Gleeson's leadership was generally regarded as more conservative than under Mason or Brennan, favouring legalism in the tradition of the Dixon and Barwick courts. In many cases the Gleeson court focused heavily on the text itself when interpreting the Constitution or a particular statute. In the Cross-vesting case
(1999), the court struck down legislation vesting certain areas of federal jurisdiction in the Supreme Courts of the states. In Al-Kateb v Godwin
(2004) a majority of the court applied a narrow interpretation of the Migration Act 1958, finding that it permitted executively
-imposed indefinite detention of stateless persons.
However, the court did not entirely shy away from principle and public policy in its decisions. In Egan v Willis (1998), the court supported the New South Wales Legislative Council
's ability to suspend the Treasurer when he failed to produce documents before the Council, emphasising the purpose of the ability in facilitating responsible government
. In Sue v Hill
(1999), the court recognised Australia's emergence as a sovereign independent nation, finding that the United Kingdom was a "foreign power".
The Gleeson court decided a number of important native title cases, including Yanner v Eaton (1999), Western Australia v Ward (2002) and the Yorta Yorta case (2002). In tort law
, the court's significant decisions include Perre v Apand Pty Ltd (1999), concerning negligence
actions where there is only pure economic loss as opposed to physical or mental injury, Dow Jones v Gutnick
(2002), regarding defamation on the Internet
, and Cattanach v Melchior
(2003), a wrongful life
case involving a healthy child. In criminal law
, the court in R v Tang (2008) upheld slavery
convictions against the owner of a brothel who had held several women in debt bondage
after they had been trafficked
to Australia.
Perhaps the Gleeson court's most significant case was amongst its later ones. In the WorkChoices case
(2006), in which the court finally explicitly accepted a wide reading of the corporations power
, after years of gradual expansion following the Concrete Pipes case
(1971).
, was appointed in September 2008. The first decision handed down by the French Court was Lujans v Yarrabee Coal Company Pty Ltd (2008), a case dealing with a motor vehicle accident. One of the most notable judgments handed down by the French Court was Pape v Commissioner of Taxation
(2009), a Constitutional law case concerning the existence of the Commonwealth's so-called "appropriation power", and the scope of its executive and taxation powers.
and six other (puisne
) Justices. The current Justices are:
The first three justices of the High Court were:
There were a number of possible candidates for the first bench of the High Court. In addition to the eventual appointees, Griffith, Barton and O'Connor, names which had been mentioned in the press included two future Justices of the court, Henry Higgins and Isaac Isaacs
, along with Andrew Inglis Clark
, Sir John Downer
, Sir Josiah Symon
and George Wise
. (Crucially, all of the above had previously served as politicians, with only Griffith and Inglis Clark possessing both political and judicial experience). Barton and O'Connor were both members of the federal parliament, and both from the government benches; indeed Barton was Prime Minister
. Each of the eventual appointees had participated in the drafting of the Constitution, and had intimate knowledge of it. All three were described as conservative, and their jurisprudence was very much influenced by English law, and in relation to the Constitution, by United States law.
In 1906, at the request of the Justices, two more seats were added to the bench, with Isaacs and Higgins the appointees. After O'Connor's death in 1912, an amendment to the Judiciary Act 1903
expanded the bench to seven. For most of 1930 two seats were left vacant, due to monetary constraints placed on the court by the Depression. The economic downturn had also led to a reduction in litigation, and consequently less work for the court. After Sir Isaac Isaacs retired in 1931, his seat was left empty, and in 1933 an amendment to the Judiciary Act officially reduced the number of seats to six. However, this led to some decisions being split three-all. With the appointment of William Webb in 1946, the number of seats returned to seven, and since then the court has had a full complement of seven Justices. there have been 46 Justices, eleven of whom have been Chief Justice
. Current Justices Susan Crennan
and Susan Kiefel
are the second and third women to sit on the bench, after Justice Mary Gaudron
. With Virginia Bell
having taken office in February 2009, there are three women sitting concurrently on the bench, alongside four men.
More than half of the Justices, twenty-four, have been residents of New South Wales
(with twenty-three of these graduates of Sydney Law School
). Thirteen were from Victoria
, six from Queensland
and three from Western Australia
. No Justices have been residents of South Australia
or Tasmania
, or any of the territories. The majority of the justices have been from Protestant backgrounds, with a smaller number from Catholic
backgrounds. Sir Isaac Isaacs
was of Polish/Jewish background, the only representative of any other faith. He also remains the only High Court Justice from a non Anglo-Celtic
background. Michael Kirby was the first openly gay justice in the history of the Court; his replacement Virginia Bell
is the first lesbian, who has been an active campaigner for gay and lesbian rights and was one of the participants in the first Sydney Gay and Lesbian Mardi Gras
in 1978.
Almost every single judge on the High Court has taken silk as a QC
or KC before appointment. The exceptions are: Justice Sir Hayden Starke
(although he refused to take silk), Justices Sir Edward McTiernan
, Sir William Webb, Sir Cyril Walsh
, Michael Kirby and now Chief Justice Robert French
.
Since the retirement of Ian Callinan
in 2007, every justice of the High Court, for the first time in its history, has had prior judicial experience (serving on state Supreme Courts or the Federal Court of Australia
. Although 13 justices of the Court had previously served in state, colonial or federal Parliaments, no parliamentarian has been appointed to the Court since Lionel Murphy
's appointment in 1975.
. In practice, appointees are nominated by the Prime Minister
, on advice from the Cabinet, particularly from the Attorney-General of Australia
. For example, four Justices were appointed while Andrew Fisher
was Prime Minister, but it was largely on Attorney-General Billy Hughes
' authority that the candidates were chosen. Since 1979, the Attorney-General has been required by section 6 of the High Court of Australia Act 1979 to consult with the Attorneys-General of the states and territories of Australia
about appointments to the court. The process was first used in relation to the appointment of Justice Wilson
, and has been generally successful, despite the occasional criticism that the states merely have a consultative, rather than a determinative, role in the selection process.
There are no qualifications for Justices in the Constitution
(other than that they must be under the retirement age of 70). The High Court of Australia Act requires that appointees have been a judge of a federal, state or territory court
, or that they have been enrolled as a legal practitioner for at least five years, with either the High Court itself or with a state or territory Supreme Court. There are no other formal requirements.
The appointment process stands in stark contrast with the highly public selection and confirmation process for justices of the Supreme Court of the United States
. While there are people who are critical of the secrecy of the process, and who advocate a more public method for appointments, there are relatively few who dispute the quality of appointees. Although three of the Chief Justices (Sir Adrian Knox
, Sir John Latham
and Sir Garfield Barwick
) were conservative politicians at the time of their appointment, and were appointed by conservative governments, their political views are not considered to have interfered with their performance on the court, and their talent is rarely questioned. However, there is frequent criticism of Barwick's intervention in the 1975 Australian constitutional crisis, when he gave advice to Governor-General
Sir John Kerr. On the other side of politics, Labor
politicians H. V. Evatt
, Sir Edward McTiernan
, and Lionel Murphy
were also appointed to the High Court; Murphy's appointment was controversial at the time and his reputation was gravely damaged in 1985 by charges that he had attempted to pervert the course of justice, although he was eventually acquitted.
Australian court hierarchy
There are two streams within the hierarchy of Australian courts, the federal stream and the state and territory stream. While the federal courts and the court systems in each state and territory are separate, the High Court of Australia remains the ultimate court of appeal for the Australian...
and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
over laws passed by the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
and the parliaments of the States
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
, and interprets the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
. The High Court is mandated by section 71 of the Constitution, which vests in it the judicial power
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
of the Commonwealth of Australia. The High Court was constituted by the Judiciary Act 1903
Judiciary Act 1903
The Judiciary Act 1903 regulates the structure of the Australian judicial system and invests federal Australian courts with jurisdiction. Its passage, on 25 August 1903, established the High Court of Australia...
. The High Court of Australia is located in Canberra
Canberra
Canberra is the capital city of Australia. With a population of over 345,000, it is Australia's largest inland city and the eighth-largest city overall. The city is located at the northern end of the Australian Capital Territory , south-west of Sydney, and north-east of Melbourne...
, Australian Capital Territory
Australian Capital Territory
The Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory...
.
Role of the court
The High Court exercises both original jurisdictionJurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
(cases which originate in the High Court) and appellate jurisdiction (appeals made to the High Court from other courts). The High Court is the court of final appeal for the whole of Australia with the ability to interpret the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
for the whole of Australia, not just the state or territory in which the matter arose. This is unlike other high courts, such as the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
(though US federal courts do have the ability to shape US federal common law
Federal common law
Federal common law is a term of United States law used to describe common law that is developed by the federal courts, instead of by the courts of the various states...
). As such, the court is able to develop the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
consistently across all of the states and territories. This role, alongside its role in constitutional interpretation, is one of the court's most significant. As Sir Owen Dixon
Owen Dixon
Sir Owen Dixon, OM, GCMG, KC Australian judge and diplomat, was the sixth Chief Justice of Australia. A justice of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest ever jurist.-Education:Dixon...
said on his swearing in as Chief Justice of Australia
Chief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...
:
"The High Court's jurisdiction is divided in its exercise between constitutional and federal cases which loom so largely in the public eye, and the great body of litigation between man and man, or even man and government, which has nothing to do with the Constitution, and which is the principal preoccupation of the court."
This broad array of jurisdiction has enabled the High Court to take a leading role in Australian law, and has contributed to a consistency and uniformity among the laws of the different states.
Original jurisdiction
The original jurisdiction of the High Court refers to matters which are originally heard in the High Court. The Constitution confers actual (section 75) and potential (section 76) original jurisdiction.Section 75 of the Constitution confers original jurisdiction in regard to "all matters":
- (i) arising under any treaty
- (ii) affecting consuls or other representatives of other countries
- (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party
- (iv) between States, or between residents of different States, or between a State and a resident of another State
- (v) in which a writ of mandamusMandamusA writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
or prohibitionProhibition (writ)A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. In practice, the Court directs the Clerk to issue the Writ, and directs the Sheriff to serve it on the subordinate, and the Clerk prepares the Writ and gives it to the Sheriff, who serves it.This...
or an injunctionInjunctionAn injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
is sought against an officer of the Commonwealth.
The conferral of original jurisdiction creates some problems for the High Court. For example, challenges against immigration-related decisions are often brought against an officer of the Commonwealth within the original jurisdiction of the High Court.
Section 76 provides that Parliament may confer original jurisdiction in relation to matters:
- (i) arising under the constitution or involving its interpretation
- (ii) arising under any laws made by the Parliament
- (iii) of admiraltyAdmiralty lawAdmiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...
and maritime jurisdiction - (iv) relating to the same subject-matter claimed under the laws of different states.
Constitutional matters, referred to in section 76(i), have been conferred to the High Court by section 30 of the Judiciary Act 1903
Judiciary Act 1903
The Judiciary Act 1903 regulates the structure of the Australian judicial system and invests federal Australian courts with jurisdiction. Its passage, on 25 August 1903, established the High Court of Australia...
. However, the inclusion of constitutional matters in section 76, rather than section 75, means that the High Court’s original jurisdiction regarding constitutional matters could be removed. In practice, section 75(iii) (suing the Commonwealth) and section 75(iv) (conflicts between states) are broad enough that many constitutional matters would still be within jurisdiction. The original constitutional jurisdiction of the High Court is now well established: the Australian Law Reform Commission
Australian Law Reform Commission
The Australian Law Reform Commission is an Australian independent statutory body established to conduct reviews into the law of Australia and advocate options for law reform...
has described the inclusion of constitutional matters in section 76 rather than section 75 as "an odd fact of history." The 1998 constitutional convention
Constitutional Convention (Australia)
In Australian history, the term Constitutional Convention refers to four distinct gatherings.-1891 convention:The 1891 Constitutional Convention was held in Sydney in March 1891 to consider a draft Constitution for the proposed federation of the British colonies in Australia and New Zealand. There...
recommended an amendment to the constitution to prevent the possibility of the jurisdiction being removed by Parliament. Failure to proceed on this issue suggests that it was considered highly unlikely that Parliament would ever take this step.
The requirement of "a matter" in section 75 and section 76 of the constitution means that a concrete issue must need to be resolved, and the High Court cannot give an advisory opinion.
Appellate jurisdiction
The High Court's appellate jurisdiction is defined under Section 73 of the Constitution. The High Court can hear appeals from the Supreme Courts of the StatesStates and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
, from any federal court or court exercising federal jurisdiction (such as the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
), and from decisions made by one or more Justices exercising the original jurisdiction of the court.
However, section 73 allows the appellate jurisdiction to be limited "with such exceptions and subject to such regulations as the Parliament prescribes". Parliament has prescribed a large limitation in section 35A of the Judiciary Act 1903
Judiciary Act 1903
The Judiciary Act 1903 regulates the structure of the Australian judicial system and invests federal Australian courts with jurisdiction. Its passage, on 25 August 1903, established the High Court of Australia...
. This requires "special leave" to appeal. Special leave is granted only where a question of law is raised which is of public importance; or involves a conflict between courts; or "is in the interests of the administration of justice". Therefore, while the High Court is the final court of appeal it cannot be considered to be a general court of appeal. The decision as to whether to grant special leave to appeal is determined by one or more Justices of the High Court (in practice, a panel of 2 or 3 judges). That is, Court exercises the power to decide which appeal cases it will consider.
The High Court and the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
was a significant one during the drafting of the Constitution, and it continued to be significant in the years after the court's creation. The final wording of section 74 prohibited appeals on constitutional matters involving disputes about the limits inter se
Inter se
Inter se is a Legal Latin phrase meaning "between or amongst themselves". For example;In Australian constitutional law, it refers to matters concerning a dispute between the Commonwealth and one or more of the States concerning the extents of their respective powers....
of Commonwealth or state powers, except where the High Court certified the appeal. It did so only once: in the case of Colonial Sugar Refining Co v Attorney-General (Commonwealth) (1912). After that case, in which the Privy Council refused to answer the constitutional questions put to it, the High Court never certified another inter se appeal. Indeed, in the case of Kirmani v Captain Cook Cruises Pty Ltd (No 2)
Kirmani v Captain Cook Cruises Pty Ltd (No 2)
Kirmani v Captain Cook Cruises Pty Ltd [1985] HCA 27; 159 CLR 461, was a decision handed down in the High Court of Australia on 17 April 1985 concerning section 74 of the Constitution of Australia...
(1985), the court said that it would never again grant a certificate of appeal.
In general matters however, section 74 did not prevent the Privy Council from granting leave to appeal against the High Court's wishes, and the council did so often. In some cases, the council acknowledged that the Australian common law had developed differently from English law, and thus did not apply its own principles (for example, in Australian Consolidated Press Ltd v Uren (1967), or in Viro v The Queen (1978)), by using a legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
which stated that different common law can apply to different circumstances. However, in other cases, the Privy Council enforced English decisions, overruling decisions by the High Court. In Parker v The Queen (1963), Chief Justice Sir Owen Dixon
Owen Dixon
Sir Owen Dixon, OM, GCMG, KC Australian judge and diplomat, was the sixth Chief Justice of Australia. A justice of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest ever jurist.-Education:Dixon...
led a unanimous judgment which rejected a precedent of the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
in DPP v Smith, saying that "I shall not depart from the law on this matter as we have long since laid it down in this Court and I think that Smith's case should not be used in Australia as authority at all"; the following year the Privy Council upheld an appeal, applying the House of Lords precedent.
Section 74 did provide that the parliament could make laws to prevent appeals to the council, and it did so, beginning in 1968, with the Privy Council (Limitation of Appeals) Act 1968, which closed off all appeals to the Privy Council in matters involving federal legislation. In 1975, the Privy Council (Appeals from the High Court) Act 1975 was passed, which had the effect of closing all routes of appeal from the High Court. Appeals from the High Court to the Privy Council are now only theoretically possible in inter se
Inter se
Inter se is a Legal Latin phrase meaning "between or amongst themselves". For example;In Australian constitutional law, it refers to matters concerning a dispute between the Commonwealth and one or more of the States concerning the extents of their respective powers....
matters if the High Court grants a certificate of appeal under section 74 of the Constitution. As noted above, the High Court indicated in 1985 it would not grant such a certificate in the future, and it is practically certain that all future High Courts will maintain this policy. In 1986, with the passing of the Australia Acts
Australia Act 1986
The Australia Act 1986 is the name given to a pair of separate but related pieces of legislation: one an Act of the Commonwealth Parliament of Australia, the other an Act of the Parliament of the United Kingdom...
by both the UK Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
and the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
(with the ratification of the States
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
), appeals to the Privy Council from state Supreme Courts were closed off, leaving the High Court as the only avenue of appeal.
Appellate jurisdiction for Nauru
As per an agreement between NauruNauru
Nauru , officially the Republic of Nauru and formerly known as Pleasant Island, is an island country in Micronesia in the South Pacific. Its nearest neighbour is Banaba Island in Kiribati, to the east. Nauru is the world's smallest republic, covering just...
and Australia in 1976, in application of article 57 of the Constitution of Nauru
Constitution of Nauru
The constitution of the Republic of Nauru was adopted following national independence on 31 January 1968.In 2007 there were political debates in progress with a view to amend aspects of the Constitution, owing to the challenge of widely acknowledged political instability...
, the High Court of Australia is the ultimate court of appeal for the sovereign Republic of Nauru, formerly an Australian colony. Thus the High Court may hear appeals from the Supreme Court of Nauru
Supreme Court of Nauru
The Supreme Court of Nauru is the highest judicial court of the Republic of Nauru.-Constitutional establishment:It is established by part V of the Constitution, adopted upon Nauru's independence from Australia in 1968. Art. 48 of the Constitution establishes the Supreme Court as "a superior court...
in both criminal and civil cases, with certain exceptions; in particular, no case pertaining to the Constitution of Nauru may be decided by the Australian court.
History
The genesis of the court can be traced back to the mid 19th century. Before the establishment of the High Court, appeals from the state Supreme Courts could be made only to the Judicial Committee of the Privy CouncilJudicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
, which involved the great expense of physically travelling to London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
. As such, some politicians in the colonies wanted to have a new court which could travel between the colonies hearing appeals.
Following Earl Grey's 1846 proposal for federation of the Australian colonies, an 1849 report from the Privy Council of the United Kingdom
Privy Council of the United Kingdom
Her Majesty's Most Honourable Privy Council, usually known simply as the Privy Council, is a formal body of advisers to the Sovereign in the United Kingdom...
suggested that a national court be created. In 1856, the then Governor of South Australia, Richard Graves MacDonnell
Richard Graves MacDonnell
Sir Richard Graves MacDonnell KCMG CB was an Anglo-Irish lawyer, judge and colonial governor...
, suggested to the Government of South Australia
Government of South Australia
The form of the Government of South Australia is prescribed in its constitution, which dates from 1856, although it has been amended many times since then...
that they and the other colonies should consider establishing a court of appeal which would hear appeals from the Supreme Courts in each colony, and in 1860 the Parliament of South Australia
Parliament of South Australia
The Parliament of South Australia is the bicameral legislature of the Australian state of South Australia. It consists of the Legislative Council and the House of Assembly. It follows a Westminster system of parliamentary government....
passed legislation encouraging MacDonnell to put forward the idea to his colleagues in the other colonies. However, only the Government of Victoria
Government of Victoria
The Government of Victoria, under the Constitution of Australia, ceded certain legislative and judicial powers to the Commonwealth, but retained complete independence in all other areas...
seriously considered this proposal.
At an inter-colonial conference in 1870 in Melbourne
Melbourne
Melbourne is the capital and most populous city in the state of Victoria, and the second most populous city in Australia. The Melbourne City Centre is the hub of the greater metropolitan area and the Census statistical division—of which "Melbourne" is the common name. As of June 2009, the greater...
, Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
, the idea of an inter-colonial court was again raised, and subsequently a Royal Commission
Royal Commission
In Commonwealth realms and other monarchies a Royal Commission is a major ad-hoc formal public inquiry into a defined issue. They have been held in various countries such as the United Kingdom, Australia, Canada, New Zealand, and Saudi Arabia...
was established in Victoria, to investigate options not only for establishing a court of appeal, but for unifying extradition
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
laws between the colonies and other similar matters. A draft bill establishing a court was put forward by the Commission, but it completely excluded appeals to the Privy Council, which reacted critically and prevented any serious attempts to implement the bill in London (before federation
Federation of Australia
The Federation of Australia was the process by which the six separate British self-governing colonies of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia formed one nation...
, any laws affecting all the colonies would have to be passed by the British Imperial Parliament in London).
In 1880, another inter-colonial conference was convened, which proposed the establishment of an Australasian Court of Appeal. This conference was more firmly focused on having an Australian court. Another draft bill was produced, providing that judges from the colonial Supreme Courts would serve one-year terms on the new court, with one judge from each colony at a given time. New Zealand, which was at the time also considering joining the Australian colonies in federation, was also to be a participant in the new court. However, the proposal retained appeals from colonial Supreme Courts to the Privy Council, which some of the colonies disputed, and the bill was eventually abandoned.
Constitutional conventions
Constitutional Convention (Australia)
In Australian history, the term Constitutional Convention refers to four distinct gatherings.-1891 convention:The 1891 Constitutional Convention was held in Sydney in March 1891 to consider a draft Constitution for the proposed federation of the British colonies in Australia and New Zealand. There...
of the 1890s, which met to draft an Australian Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
, also raised the idea of a federal Supreme Court. Initial proposals at a conference in Melbourne
Melbourne
Melbourne is the capital and most populous city in the state of Victoria, and the second most populous city in Australia. The Melbourne City Centre is the hub of the greater metropolitan area and the Census statistical division—of which "Melbourne" is the common name. As of June 2009, the greater...
in February 1890 led to a convention in Sydney
Sydney
Sydney is the most populous city in Australia and the state capital of New South Wales. Sydney is located on Australia's south-east coast of the Tasman Sea. As of June 2010, the greater metropolitan area had an approximate population of 4.6 million people...
in March and April 1891, which produced a draft constitution. The draft included the creation of a Supreme Court of Australia, which would not only interpret the Constitution, like the United States Supreme Court, but also would be a court of appeal from the state Supreme Courts. The draft effectively removed appeals to the Privy Council, allowing them only if the British monarch gave leave to appeal and not allowing appeals at all in constitutional matters.
This draft was largely the work of Sir Samuel Griffith
Samuel Griffith
Sir Samuel Walker Griffith GCMG QC, was an Australian politician, Premier of Queensland, Chief Justice of the High Court of Australia and a principal author of the Constitution of Australia.-Early life:...
, then the Premier of Queensland, later Chief Justice of Queensland and the first Chief Justice of Australia
Chief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...
. Other significant contributors to the judicial clauses in the draft included Attorney-General of Tasmania Andrew Inglis Clark
Andrew Inglis Clark
Andrew Inglis Clark was an Australian barrister, politician, electoral reformer and jurist. He initially qualified engineer, however he re-trained as a barrister in order to effectively fight for social causes which deeply concerned him...
, who had prepared his own constitution prior to the convention. Inglis Clark's most significant contribution was to give the court its own constitutional authority, ensuring the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
; the original formulation from Griffith, Edmund Barton
Edmund Barton
Sir Edmund Barton, GCMG, KC , Australian politician and judge, was the first Prime Minister of Australia and a founding justice of the High Court of Australia....
and Charles Kingston
Charles Kingston
Charles Cameron Kingston, Australian politician, was an early liberal Premier of South Australia serving from 1893 to 1899 with the support of Labor led by John McPherson from 1893 and Lee Batchelor from 1897 in the House of Assembly, winning the 1893, 1896, and 1899 state elections against the...
provided only that the parliament could establish a court.
Adelaide
Adelaide is the capital city of South Australia and the fifth-largest city in Australia. Adelaide has an estimated population of more than 1.2 million...
in 1897, in Sydney later the same year and in Melbourne in early 1898, there were changes to the earlier draft. In Adelaide, the name of the court was changed from Supreme Court of Australia to High Court of Australia. Many people also opposed the new court completely replacing the Privy Council: many large businesses, particularly those which were subsidiaries of British companies or regularly traded with the United Kingdom, preferred for business reasons to keep the colonies under the unified jurisdiction of the British courts, and petitioned the conventions to that effect. Other arguments posited against removing Privy Council appeals were that Australian judges were of a poorer quality than English ones, and that without the Council's oversight, the law in the colonies risked becoming different from English law. Some politicians, such as Sir George Dibbs
George Dibbs
Sir George Richard Dibbs KCMG was an Australian politician who was Premier of New South Wales on three occasions.-Early years:Dibbs was born in Sydney, son of Captain John Dibbs, who disappeared in the same year...
, supported the petitioners, but others, including Alfred Deakin
Alfred Deakin
Alfred Deakin , Australian politician, was a leader of the movement for Australian federation and later the second Prime Minister of Australia. In the last quarter of the 19th century, Deakin was a major contributor to the establishment of liberal reforms in the colony of Victoria, including the...
, supported the design of the court as it was. Inglis Clark took the view that the possibility of divergence was a good thing, for the law could adapt appropriately to Australian circumstances. Despite the debate, the portions of the draft dealing with the court remained largely unchanged, as the delegates focused on different matters.
After the draft had been approved by the electors of the colonies, it was taken to London in 1899, for the assent of the British Imperial Parliament. However the issue of Privy Council appeals remained a sticking point with a number of Australian and British politicians, including the Secretary of State for the Colonies
Secretary of State for the Colonies
The Secretary of State for the Colonies or Colonial Secretary was the British Cabinet minister in charge of managing the United Kingdom's various colonial dependencies....
, Joseph Chamberlain
Joseph Chamberlain
Joseph Chamberlain was an influential British politician and statesman. Unlike most major politicians of the time, he was a self-made businessman and had not attended Oxford or Cambridge University....
, the Chief Justice of South Australia, Sir Samuel Way
Samuel Way
Sir Samuel James Way, 1st Baronet , English-Australian jurist, was a Chief Justice from 18 March 1876 until 8 January 1916 of the Supreme Court of South Australia, which is the highest ranking court in the Australian State of South Australia.Way was born in Portsmouth, England, in 1836...
, and the Chief Justice of Queensland, Sir Samuel Griffith
Samuel Griffith
Sir Samuel Walker Griffith GCMG QC, was an Australian politician, Premier of Queensland, Chief Justice of the High Court of Australia and a principal author of the Constitution of Australia.-Early life:...
. Indeed, in October 1899, Griffith made representations to Chamberlain soliciting suggestions from British ministers for alterations to the draft, and offering some alterations of his own. Indeed, such was the effect of these and other representations that Chamberlain called for delegates from the colonies to come to London to assist with the approval process, with a view to their approving any alterations that the British government might see fit to make; delegates were sent, including Deakin, Barton and Charles Kingston
Charles Kingston
Charles Cameron Kingston, Australian politician, was an early liberal Premier of South Australia serving from 1893 to 1899 with the support of Labor led by John McPherson from 1893 and Lee Batchelor from 1897 in the House of Assembly, winning the 1893, 1896, and 1899 state elections against the...
, although they were under instructions that they would never agree to changes.
After intense lobbying both in Australia and in the United Kingdom, the Imperial Parliament finally approved the draft constitution, albeit with an altered section 74, which represented a compromise between the two sides: there would be a general right of appeal from the High Court to the Privy Council, except that the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
would be able to make laws restricting this avenue, and also that appeals in inter se matters (matters concerning the boundary between and limits of the powers of the Commonwealth and the powers of the states) were not as of right, but had to be certified by the High Court.
Formation of the court
The Constitution was passed by the Imperial Parliament, and came into effect on 1 January 1901. However, the High Court was not established straightaway; it was necessary for the new ParliamentParliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
to make laws about the structure and procedure of the court. Some of the members of the First Parliament, including Sir John Quick
John Quick (politician)
Sir John Quick , Australian politician and author, was the federal Member of Parliament for Bendigo from 1901 to 1913 and a leading delegate to the constitutional conventions of the 1890s.-Early life:...
, then one of the leading legal experts in Australia, opposed legislation to set up the court. Even H. B. Higgins
H. B. Higgins
Henry Bournes Higgins , Australian politician and judge, always known in his lifetime as H. B. Higgins, was a highly influential figure in Australian politics and law.-Career:...
, who was himself later appointed to the court, objected to setting it up, on the grounds that it would be impotent while Privy Council appeals remained, and that in any event there was not enough work for a federal court to make it viable.
In 1902, the then Attorney-General
Attorney-General of Australia
The Attorney-General of Australia is the first law officer of the Crown, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but there is no constitutional requirement that this be the case since the...
Alfred Deakin introduced the Judiciary Bill 1902 into the parliament. Although Deakin and Griffith had produced a draft bill as early as February 1901, it was continually delayed by opponents in the parliament, and the success of the bill is generally attributed to Deakin's passion and effort in pushing the bill through the parliament despite this opposition. Deakin had proposed that the court be composed of five judges, specially selected to the court; opponents instead proposed that the court should be made up of state Supreme Court justices, taking turns to sit on the High Court on a rotation basis, as had been mooted at the Constitutional Conventions a decade before. Deakin eventually negotiated amendments with the opposition
Opposition (Australia)
Her Majesty's Loyal Opposition in Australia fulfils the same function as the official opposition in other Commonwealth of Nations monarchies. It is seen as the alternative government and the existing administration's main opponent at a general election...
, reducing the number of judges from five to three, and eliminating financial benefits such as pensions.
At one point, Deakin even threatened to resign as Attorney-General due to the difficulties he faced. In what is now a famous speech, Deakin gave a second reading
Reading (legislature)
A reading of a bill is a debate on the bill held before the general body of a legislature, as opposed to before a committee or other group. In the Westminster system, there are usually several readings of a bill among the stages it passes through before becoming law as an Act of Parliament...
to the House of Representatives
Australian House of Representatives
The House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
, lasting three and a half hours, in which he declared:
"The federation is constituted by distribution of powers, and it is this court which decides the orbit and boundary of every power... It is properly termed the keystone of the federal arch... The statute stands and will stand on the statute-book just as in the hour in which it was assented to. But the nation lives, grows and expands. Its circumstances change, its needs alter, and its problems present themselves with new faces. [The High Court] enables the Constitution to grow and be adapted to the changeful necessities and circumstances of generation after generation that the High Court operates."
Deakin's friend, painter Tom Roberts
Tom Roberts
Thomas William Roberts , usually known simply as Tom, was a prominent Australian artist and a key member of the Heidelberg School.-Life:...
, who viewed the speech from the public gallery, declared it Deakin's "magnum opus". The Judiciary Act 1903
Judiciary Act 1903
The Judiciary Act 1903 regulates the structure of the Australian judicial system and invests federal Australian courts with jurisdiction. Its passage, on 25 August 1903, established the High Court of Australia...
was finally passed on 25 August 1903, and the first three justices, Chief Justice
Chief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...
Sir Samuel Griffith
Samuel Griffith
Sir Samuel Walker Griffith GCMG QC, was an Australian politician, Premier of Queensland, Chief Justice of the High Court of Australia and a principal author of the Constitution of Australia.-Early life:...
and Justices Sir Edmund Barton
Edmund Barton
Sir Edmund Barton, GCMG, KC , Australian politician and judge, was the first Prime Minister of Australia and a founding justice of the High Court of Australia....
and Richard O'Connor were appointed on 5 October of that year. On 6 October, the court held its first sitting in the Banco Court in the Supreme Court of Victoria
Supreme Court of Victoria
The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state...
.
First years of the court
After the court's first sitting in the Banco Court in MelbourneMelbourne
Melbourne is the capital and most populous city in the state of Victoria, and the second most populous city in Australia. The Melbourne City Centre is the hub of the greater metropolitan area and the Census statistical division—of which "Melbourne" is the common name. As of June 2009, the greater...
, the court continued to use that court until 1928, when a dedicated courtroom was built in Little Bourke Street
Little Bourke Street, Melbourne
Little Bourke Street in Melbourne's CBD runs roughly east–west within the Hoddle Grid. It is a one-way street heading in a westward direction...
, next to the Supreme Court of Victoria
Supreme Court of Victoria
The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state...
, which provided the court's Melbourne sitting place and housed the court's principal registry
Registry
-Computing:* Windows Registry, a database of configuration settings in Microsoft Windows operating systems* Domain name registry, an organization that manages the registration of top-level internet domain names...
until 1980. The court also sat regularly in Sydney
Sydney
Sydney is the most populous city in Australia and the state capital of New South Wales. Sydney is located on Australia's south-east coast of the Tasman Sea. As of June 2010, the greater metropolitan area had an approximate population of 4.6 million people...
, where it originally shared space in the Criminal Courts in the suburb of Darlinghurst
Darlinghurst, New South Wales
Darlinghurst is an inner-city, eastern suburb of Sydney, in the state of New South Wales, Australia. Darlinghurst is located immediately east of the Sydney central business district and Hyde Park, within the local government area of the City of Sydney...
, before a dedicated courtroom was constructed next door in 1923.
The court travelled to other cities across the country, where it did not have any facilities of its own, but used facilities of the Supreme Court in each city. Alfred Deakin had envisaged that the court would sit in many different locations, so as to truly be a federal court. Shortly after the court's creation, Chief Justice Griffith established a schedule for sittings in state capitals: Hobart
Hobart
Hobart is the state capital and most populous city of the Australian island state of Tasmania. Founded in 1804 as a penal colony,Hobart is Australia's second oldest capital city after Sydney. In 2009, the city had a greater area population of approximately 212,019. A resident of Hobart is known as...
, Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
in February, Brisbane
Brisbane
Brisbane is the capital and most populous city in the Australian state of Queensland and the third most populous city in Australia. Brisbane's metropolitan area has a population of over 2 million, and the South East Queensland urban conurbation, centred around Brisbane, encompasses a population of...
, Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
in June, Perth
Perth, Western Australia
Perth is the capital and largest city of the Australian state of Western Australia and the fourth most populous city in Australia. The Perth metropolitan area has an estimated population of almost 1,700,000....
, Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
in September and Adelaide
Adelaide
Adelaide is the capital city of South Australia and the fifth-largest city in Australia. Adelaide has an estimated population of more than 1.2 million...
, South Australia
South Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
in October; it is said that Griffith established this schedule because those were the times of year he found the weather most pleasant in each city. The tradition remains to this day, although most of the court's sittings are now conducted in Canberra
Canberra
Canberra is the capital city of Australia. With a population of over 345,000, it is Australia's largest inland city and the eighth-largest city overall. The city is located at the northern end of the Australian Capital Territory , south-west of Sydney, and north-east of Melbourne...
.
Sittings were dependent on the caseload, and to this day sittings in Hobart occur only once every few years. There are annual sittings in Perth, Adelaide and Brisbane for up to a week each. During the Great Depression
Great Depression
The Great Depression was a severe worldwide economic depression in the decade preceding World War II. The timing of the Great Depression varied across nations, but in most countries it started in about 1929 and lasted until the late 1930s or early 1940s...
, sittings outside of Melbourne and Sydney were suspended in order to reduce costs.
During World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, the court faced a period of change. The Chief Justice, Sir John Latham
John Latham (Australian jurist)
Sir John Greig Latham GCMG QC was an Australian judge and politician who served as fifth Chief Justice of the High Court of Australia for seventeen years, from 1935 to 1952.-Biography:...
, served from 1940 to 1941 as Australia's first ambassador to Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
, although his activities in this role were limited by the mutual assistance pact that Japan had entered into with the Axis powers
Axis Powers
The Axis powers , also known as the Axis alliance, Axis nations, Axis countries, or just the Axis, was an alignment of great powers during the mid-20th century that fought World War II against the Allies. It began in 1936 with treaties of friendship between Germany and Italy and between Germany and...
before he could arrive in Tokyo
Tokyo
, ; officially , is one of the 47 prefectures of Japan. Tokyo is the capital of Japan, the center of the Greater Tokyo Area, and the largest metropolitan area of Japan. It is the seat of the Japanese government and the Imperial Palace, and the home of the Japanese Imperial Family...
, and were curtailed by the commencement of the Pacific War
Pacific War
The Pacific War, also sometimes called the Asia-Pacific War refers broadly to the parts of World War II that took place in the Pacific Ocean, its islands, and in East Asia, then called the Far East...
. Justice Sir Owen Dixon
Owen Dixon
Sir Owen Dixon, OM, GCMG, KC Australian judge and diplomat, was the sixth Chief Justice of Australia. A justice of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest ever jurist.-Education:Dixon...
was also absent for several years, while he served as Australia's minister to the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
in Washington
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
. Sir George Rich
George Rich
Sir George Edward Rich KCMG PC , Australian judge, was a justice of the High Court of Australia.Rich was born in the town of Braidwood, New South Wales, in 1863. He was educated at Sydney Grammar School, and later studied at the University of Sydney, where he graduated with a Bachelor of Arts in...
was Acting Chief Justice in Latham's absence. There were many difficult cases concerning the federal government
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
's use of the defence power during the war.
Post-war period
From 1952, with the appointment of Sir Owen Dixon as Chief Justice, the court entered a period of stability. After World War IIWorld War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, the court's workload continued to grow, particularly from the 1960s onwards, putting pressures on the court. Sir Garfield Barwick
Garfield Barwick
Sir Garfield Edward John Barwick, was the Attorney-General of Australia , Minister for External Affairs and the seventh and longest serving Chief Justice of Australia...
, who was Attorney-General
Attorney-General of Australia
The Attorney-General of Australia is the first law officer of the Crown, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but there is no constitutional requirement that this be the case since the...
from 1958 to 1964, and from then till 1981 Chief Justice
Chief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...
, proposed that more federal courts be established, as permitted under the Constitution. In 1976 the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
was established, with a general federal jurisdiction, and in more recent years the Family Court
Family Court of Australia
The Family Court of Australia is a superior Australian federal court of record which deals with family law matters. Together with the Federal Magistrates Court, it covers family law matters in all states and territories of Australia except Western Australia...
and Federal Magistrates Court have been set up to reduce the court's workload in specific areas.
Building
In the 1950s the then Prime MinisterPrime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
Robert Menzies
Robert Menzies
Sir Robert Gordon Menzies, , Australian politician, was the 12th and longest-serving Prime Minister of Australia....
had established a plan to develop Canberra, and construct other important national buildings. In 1959, a plan featured a new building for the High Court on the shores of Lake Burley Griffin
Lake Burley Griffin
Lake Burley Griffin is an artificial lake in the centre of Canberra, the capital of Australia. It was completed in 1963 after the Molonglo River—which ran between the city centre and Parliamentary Triangle—was dammed...
, next to the location for the new Parliament House
Parliament House, Canberra
Parliament House is the meeting facility of the Parliament of Australia located in Canberra, the capital of Australia. The building was designed by Mitchell/Giurgola Architects and opened on 1988 by Elizabeth II, Queen of Australia...
, and the National Library of Australia
National Library of Australia
The National Library of Australia is the largest reference library of Australia, responsible under the terms of the National Library Act for "maintaining and developing a national collection of library material, including a comprehensive collection of library material relating to Australia and the...
. This plan was abandoned in 1968, and the location of the Parliament was moved, later settling on the present site on Capital Hill.
In March 1968, the government announced that the court would move to Canberra. In 1972 an international competition was held attracting 158 entries. In 1973 the firm of Edwards Madigan Torzillo Briggs was declared the winner of the two-stage competition. Architect Chris Kringas was the Principal Designer and Director in charge of the design team that included Feiko Bouman and Rod Lawrence. In 1975, only one month before construction began, Kringas died aged 38. Following his death, Architect Hans Marelli and Colin Madigan
Colin Madigan
Colin Frederick Madigan AO was an Australian architect. He is best known for designing the National Gallery of Australia in Canberra.-Biography:...
supervised the construction of the design.
Construction began in April 1975 on the shore of Lake Burley Griffin, in the Parliamentary Triangle. The site is just to the east of the axis running between Capital Hill and the Australian War Memorial
Australian War Memorial
The Australian War Memorial is Australia's national memorial to the members of all its armed forces and supporting organisations who have died or participated in the wars of the Commonwealth of Australia...
. The High Court building houses three courtrooms, Justices' chambers, and the Court's main registry, library, and corporate services facilities. It is an unusual and distinctive structure, built in the brutalist style, and features an immense public atrium with a 24 metre high roof. The neighbouring National Gallery was also designed by the firm of Edwards Madigan Torzillo and Briggs. There are similarities between the two buildings in material and style but significant differences in architectural form and spatial concept. The building was completed in 1980, and the majority of the court's sittings have been held in Canberra since then.
The High Court and National Gallery Precinct were added to the Australian National Heritage List
Australian National Heritage List
The Australian National Heritage List is a list of places deemed to be of outstanding heritage significance to Australia. The list includes natural, historic and indigenous places...
in November 2007.
Jurisprudence
The legal history of the court is commonly summarised by reference to the Chief JusticeChief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...
of the time.
Griffith court
Samuel Griffith
Sir Samuel Walker Griffith GCMG QC, was an Australian politician, Premier of Queensland, Chief Justice of the High Court of Australia and a principal author of the Constitution of Australia.-Early life:...
had to establish its position as a new court of appeal for the whole of Australia, and had to develop a new body of principle for interpreting the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
and federal legislation. Griffith himself was very much the dominant influence on the court in its early years, but after the appointment of Sir Isaac Isaacs
Isaac Isaacs
Sir Isaac Alfred Isaacs GCB GCMG KC was an Australian judge and politician, was the third Chief Justice of Australia, ninth Governor-General of Australia and the first born in Australia to occupy that post. He is the only person ever to have held both positions of Chief Justice of Australia and...
and H. B. Higgins
H. B. Higgins
Henry Bournes Higgins , Australian politician and judge, always known in his lifetime as H. B. Higgins, was a highly influential figure in Australian politics and law.-Career:...
in 1906, and the death of foundation Justice Richard O'Connor
Richard O'Connor (Australian politician)
Richard Edward O'Connor, QC , Australian politician and judge, was a member of the first federal ministry.-Biography:...
, Griffith's influence began to decline.
The court was keen to establish its position at the top of the Australian court hierarchy
Australian court hierarchy
There are two streams within the hierarchy of Australian courts, the federal stream and the state and territory stream. While the federal courts and the court systems in each state and territory are separate, the High Court of Australia remains the ultimate court of appeal for the Australian...
. In Deakin v Webb (1904) Griffith criticised the Supreme Court of Victoria
Supreme Court of Victoria
The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state...
for following a Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
decision about the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
, rather than following the High Court's own decision on the Australian Constitution.
In Australian constitutional law
Australian constitutional law
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....
, the early decisions of the court were influenced by United States constitutional law
United States constitutional law
United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.- Introduction :United States constitutional law defines the scope and application of the terms of the Constitution...
. In the case of D'Emden v Pedder
D'Emden v Pedder
D'Emden v Pedder was a significant Australian court case decided in the High Court of Australia on 26 April 1904. It directly concerned the question of whether salary receipts of federal government employees were subject to state stamp duty, but it touched on the broader issue within Australian...
(1904), which involved the application of Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
n stamp duty
Stamp duty
Stamp duty is a tax that is levied on documents. Historically, this included the majority of legal documents such as cheques, receipts, military commissions, marriage licences and land transactions. A physical stamp had to be attached to or impressed upon the document to denote that stamp duty...
to a federal official's salary
Salary
A salary is a form of periodic payment from an employer to an employee, which may be specified in an employment contract. It is contrasted with piece wages, where each job, hour or other unit is paid separately, rather than on a periodic basis....
, the court adopted the doctrine of implied immunity of instrumentalities which had been established in the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case of McCulloch v. Maryland
McCulloch v. Maryland
McCulloch v. Maryland, , was a landmark decision by the Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland...
(1803). That doctrine established that any attempt by the federal government to interfere with the legislative or executive power of the states
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
was invalid, and vice versa. Accompanying that doctrine was the doctrine of reserved State powers
Reserved State powers
The reserved country powers, also called reserved powers, is a doctrine reserved exclusively for the states, that is used in the interpretation of the Constitution of Australia. It adopted a restrictive approach to the interpretation of the specific powers of the Federal Parliament in order to...
, which was based on the principle that the powers of the federal parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
should be interpreted narrowly, to avoid intruding on areas of power traditionally exercise by the state parliaments. The concept was developed in such cases as Peterswald v Bartley
Peterswald v Bartley
Peterswald v Bartley 1 CLR 497 is an early High Court of Australia case that dealt with section 90 of the Australian Constitution, which prohibits States from levying excise....
(1904), R v Barger
R v Barger
R v Barger 6 CLR 41 is a High Court of Australia case that considered the scope of the taxation power.-Facts:The Commonwealth government imposed taxes on the use of certain types of agricultural machinery. An exemption applied where the employment conditions of workers using the machinery were...
(1908) and the Union Label case (1908).
Together the two doctrines helped smooth the transition to a federal system of government, and "by preserving a balance between the constituent elements of the Australian federation, probably conformed to community sentiment, which at that stage was by no means adjusted to the exercise of central power." The court had a generally conservative view of the Constitution, taking narrow interpretations of section 116 (which guarantees religious freedom) and section 117 (which prevents discrimination on the basis of someone's state of origin), interpretations that were to last well into the 1980s.
Two of the original judges of the Court, Griffith and Sir Edmund Barton
Edmund Barton
Sir Edmund Barton, GCMG, KC , Australian politician and judge, was the first Prime Minister of Australia and a founding justice of the High Court of Australia....
, were frequently consulted by governors-general, including on the exercise of the reserve powers. This practice of consultation has continued from time to time since.
Knox, Isaacs and Gavan Duffy courts
Adrian KnoxAdrian Knox
Sir Adrian Knox KCMG, KC , Australian judge, was the second Chief Justice of the High Court of Australia, sitting on the bench of the High Court from 1919 to 1930.-Education:...
(later Sir Adrian) became Chief Justice on 18 October 1919, and less than three months later, foundation Justice Sir Edmund Barton
Edmund Barton
Sir Edmund Barton, GCMG, KC , Australian politician and judge, was the first Prime Minister of Australia and a founding justice of the High Court of Australia....
died, leaving no original members. The most significant case of the era was the Engineers case (1920), decided at the beginning of Knox's term. In that case, the doctrines of reserved State powers and implied immunity of instrumentalities were both overturned, and the court entered a new era of constitutional interpretation in which the focus would fall almost exclusively on the text of the Constitution, and in which the powers of the federal parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
would gain increasing importance.
Knox was knighted in 1921, the only Chief Justice to be first knighted during his term. Some of the Knox court's early work related to the aftermath of World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
. In Roche v Kronheimer (1921), the court upheld federal legislation which allowed for the making of regulations to implement Australia's obligations under the Treaty of Versailles
Treaty of Versailles
The Treaty of Versailles was one of the peace treaties at the end of World War I. It ended the state of war between Germany and the Allied Powers. It was signed on 28 June 1919, exactly five years after the assassination of Archduke Franz Ferdinand. The other Central Powers on the German side of...
. The majority decided the case on the defence power
Section 51(vi) of the Australian Constitution
Section 51 of the Australian Constitution, commonly called the defence power, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "the naval and military defence of the Commonwealth and of the several States, and...
, but Higgins decided it on the external affairs power
Section 51(xxix) of the Australian Constitution
Section 51 of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs"....
, the first case to decide that the external affairs power could be used to implement an international treaty in Australia.
Sir Isaac Isaacs
Isaac Isaacs
Sir Isaac Alfred Isaacs GCB GCMG KC was an Australian judge and politician, was the third Chief Justice of Australia, ninth Governor-General of Australia and the first born in Australia to occupy that post. He is the only person ever to have held both positions of Chief Justice of Australia and...
was Chief Justice for only forty-two weeks, before leaving the court to be appointed Governor-General of Australia
Governor-General of Australia
The Governor-General of the Commonwealth of Australia is the representative in Australia at federal/national level of the Australian monarch . He or she exercises the supreme executive power of the Commonwealth...
. Isaacs was ill for much of his term as Chief Justice, and few significant cases were decided under his formal leadership; rather, his best years were under Knox, where he was the most senior puisne
Puisne
Puisne is a legal term of art used mainly in British English meaning "inferior in rank." It is pronounced like the word puny, and the word, so spelled, has become an ordinary adjective meaning weak or undersized.The judges and barons of the common law courts at...
Justice and led the court in many decisions.
Sir Frank Gavan Duffy
Frank Gavan Duffy
Sir Frank Gavan Duffy, KCMG, PC, QC , Australian judge, was the fourth Chief Justice of the High Court of Australia, sitting on the bench of the High Court from 1913 to 1935.-Early life:...
was Chief Justice for four years beginning in 1931, although he was already 78 when appointed to the position and did not exert much influence, given that (excluding single-Justice cases) he participated in only 40 per cent of cases in that time, and regularly gave short judgments or joint judgments with other Justices. In the context of the Great Depression
Great Depression
The Great Depression was a severe worldwide economic depression in the decade preceding World War II. The timing of the Great Depression varied across nations, but in most countries it started in about 1929 and lasted until the late 1930s or early 1940s...
, the court was reduced to six Justices, resulting in many tied decisions which have no lasting value as precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
.
During this time, the court did decide several important cases, including Attorney-General (New South Wales) v Trethowan (1931), which considered Premier of New South Wales Jack Lang
Jack Lang (Australian politician)
John Thomas Lang , usually referred to as J.T. Lang during his career, and familiarly known as "Jack" and nicknamed "The Big Fella" was an Australian politician who was Premier of New South Wales for two terms...
's attempt to abolish the New South Wales Legislative Council
New South Wales Legislative Council
The New South Wales Legislative Council, or upper house, is one of the two chambers of the parliament of New South Wales in Australia. The other is the Legislative Assembly. Both sit at Parliament House in the state capital, Sydney. The Assembly is referred to as the lower house and the Council as...
, and the First State Garnishee case (1932), which upheld federal legislation compelling the Lang government to repay its loans. Much of the court's other work related to legislation passed in response to the Depression.
Latham court
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
. Although it dealt with cases in other areas, its most important and lasting work related to wartime legislation, and the transition back to peace following the war. The court upheld much legislation under the defence power
Section 51(vi) of the Australian Constitution
Section 51 of the Australian Constitution, commonly called the defence power, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "the naval and military defence of the Commonwealth and of the several States, and...
, interpreting it broadly wherever there was a connection to defence purposes, in cases such as Andrews v Howell (1941) and de Mestre v Chisholm (1944). In general, the Curtin
John Curtin
John Joseph Curtin , Australian politician, served as the 14th Prime Minister of Australia. Labor under Curtin formed a minority government in 1941 after the crossbench consisting of two independent MPs crossed the floor in the House of Representatives, bringing down the Coalition minority...
Labor
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
government was rarely successfully challenged, the court recognising the necessity that the defence power permit the federal government to govern strongly. The court also allowed the federal government to institute a national income tax
Income tax
An income tax is a tax levied on the income of individuals or businesses . Various income tax systems exist, with varying degrees of tax incidence. Income taxation can be progressive, proportional, or regressive. When the tax is levied on the income of companies, it is often called a corporate...
scheme in the First Uniform Tax case
South Australia v Commonwealth
South Australia v Commonwealth 65 CLR 373 is a High Court of Australia case that established the Commonwealth government's ability to impose a scheme of uniform income tax, ultimately arising in a vertical fiscal imbalance in the spending requirements and taxing abilities of the various levels of...
(1942), and upheld legislation allowing the proclamation of the pacifist Jehovah's Witnesses
Jehovah's Witnesses
Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. The religion reports worldwide membership of over 7 million adherents involved in evangelism, convention attendance of over 12 million, and annual...
religion as a subversive organisation, in the Jehovah's Witnesses case
Adelaide Company of Jehovah's Witnesses v Commonwealth
Adelaide Company of Jehovah's Witnesses Inc v Commonwealth 67 CLR 116 was a court case decided in the High Court of Australia on 14 June 1943....
(1943).
The court reined in the wide scope of the defence power after the war, allowing for a transitional period. It struck down several key planks of the Chifley
Ben Chifley
Joseph Benedict Chifley , Australian politician, was the 16th Prime Minister of Australia. He took over the Australian Labor Party leadership and Prime Ministership after the death of John Curtin in 1945, and went on to retain government at the 1946 election, before being defeated at the 1949...
Labor government's reconstruction program, notably an attempt to nationalise
Nationalization
Nationalisation, also spelled nationalization, is the process of taking an industry or assets into government ownership by a national government or state. Nationalization usually refers to private assets, but may also mean assets owned by lower levels of government, such as municipalities, being...
the banks in the Bank Nationalisation case
Bank of New South Wales v Commonwealth
Bank of New South Wales v The Commonwealth 76 CLR 1, also known as the Bank Nationalisation Case, is a notable case of the High Court of Australia.-Background:...
(1948), and an attempt to establish a comprehensive medical benefits scheme in the First Pharmaceutical Benefits case
Attorney-General (Victoria); Ex rel Dale v Commonwealth
Attorney-General ; Ex rel Dale v Commonwealth 71 CLR 237 - commonly known as the "Pharmaceutical Benefits case" - was a High Court of Australia decision...
(1945). However the court also famously struck down Menzies
Robert Menzies
Sir Robert Gordon Menzies, , Australian politician, was the 12th and longest-serving Prime Minister of Australia....
Liberal
Liberal Party of Australia
The Liberal Party of Australia is an Australian political party.Founded a year after the 1943 federal election to replace the United Australia Party, the centre-right Liberal Party typically competes with the centre-left Australian Labor Party for political office...
government legislation banning the Communist Party of Australia
Communist Party of Australia
The Communist Party of Australia was founded in 1920 and dissolved in 1991; it was succeeded by the Socialist Party of Australia, which then renamed itself, becoming the current Communist Party of Australia. The CPA achieved its greatest political strength in the 1940s and faced an attempted...
in the Communist Party case
Australian Communist Party v Commonwealth
Australian Communist Party v The Commonwealth 83 CLR 1, also known as the Communist Party Case, was a legal case in the High Court of Australia described as "undoubtedly one of the High Court's most important decisions."- Background :...
(1951), Latham's last major case.
Apart from the wartime cases, the Latham court also developed the criminal
Australian criminal law
The criminal law of Australia generally administered by individual jurisdictions in the Commonwealth of Australia. These jurisdictions include the six states, the Commonwealth, and the self-governing territories...
defence of honest and reasonable mistake of fact, for example in Proudman v Dayman (1941). It also paved the way for the development of the external affairs power
Section 51(xxix) of the Australian Constitution
Section 51 of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs"....
by upholding the implementation of an air navigation treaty in R v Burgess; Ex parte Henry
R v Burgess; Ex parte Henry
R v Burgess; Ex parte Henry 55 CLR 608 was a case decided in the High Court of Australia regarding the scope of the trade and commerce power and the external affairs power, in sections 51 and 51 respectively, of the Constitution....
(1936).
Dixon court
Owen Dixon
Sir Owen Dixon, OM, GCMG, KC Australian judge and diplomat, was the sixth Chief Justice of Australia. A justice of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest ever jurist.-Education:Dixon...
, who was elevated to that role in 1952 after 23 years as a puisne
Puisne
Puisne is a legal term of art used mainly in British English meaning "inferior in rank." It is pronounced like the word puny, and the word, so spelled, has become an ordinary adjective meaning weak or undersized.The judges and barons of the common law courts at...
Justice, the court enjoyed its most successful period, with British
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
judge, Master of the Rolls
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
Lord Denning, describing the time as the court's "Golden Age". Dixon, widely regarded as Australia's greatest judge, had a commanding personal and legal influence over the court in this time, measurable in the rise in joint judgments (many of which were led by Dixon) and good relations between the Justices.
While there were fewer cases which tested the limits of federal power, which was probably due to the Menzies government which was firmly entrenched in its conservative phase throughout Dixon's tenure, the court did decide several important constitutional cases. Dixon led the court in firmly establishing the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
for the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
in the Boilermakers' case
R v Kirby; Ex parte Boilermakers' Society of Australia
R v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; 94 CLR 254 was a case in which the High Court of Australia held that the judicial power of the Commonwealth could not be vested in a tribunal that also exercised non-judicial functions...
(1956), and the court also upheld the continuing existence of the federal government's income tax scheme in the Second Uniform Tax case
Victoria v Commonwealth (1957)
Victoria v Commonwealth 99 CLR 575 is a High Court of Australia case that affirmed the Commonwealth government's ability to impose a scheme of uniform income tax, ultimately arising in a vertical fiscal imbalance in the spending requirements and taxing abilities of the various levels of...
(1957).
During Dixon's time as Chief Justice, the court came to adopt several of the views that Dixon had advanced in minority opinions in years prior. In several cases, the court upheld Dixon's interpretation of section 92 of the Australian Constitution (one of the most troublesome sections of the Constitution), which he regarded as guaranteeing a constitutional right to engage in interstate trade, subject to reasonable regulation. It also followed Dixon's interpretation of section 90 (which prohibits the states from exacting duties of excise
Excise
Excise tax in the United States is a indirect tax on listed items. Excise taxes can be and are made by federal, state and local governments and are far from uniform throughout the United States...
), although both these interpretations were ultimately abandoned many years later.
Barwick court
Sir Garfield BarwickGarfield Barwick
Sir Garfield Edward John Barwick, was the Attorney-General of Australia , Minister for External Affairs and the seventh and longest serving Chief Justice of Australia...
came to the court as Chief Justice in 1964. A significant decision of the Barwick court marked the beginning of the modern interpretation of the corporations power
Section 51(xx) of the Australian Constitution
Section 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
, which had been interpreted narrowly since 1909. The Concrete Pipes case
Strickland v Rocla Concrete Pipes Ltd
Strickland v Rocla Concrete Pipes Ltd 124 CLR 468, also known as the Concrete Pipes Case, is a High Court of Australia case that discusses the scope of the corporations power in section 51 of the Australian Constitution...
(1971) established that the federal parliament could exercise the power to regulate at least the trading activities of corporations, whereas earlier interpretations had allowed only the regulation of conduct or transactions with the public.
The court decided many other significant constitutional cases, including the Seas and Submerged Lands case (1975), upholding legislation asserting sovereignty over the territorial sea; the First (1975) and Second (1977) Territory Senators cases, which concerned whether legislation allowing for the mainland territories
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
to be represented in the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
was valid; and Russell v Russell (1976), which concerned the validity of the Family Law Act 1975
Family Law Act 1975
The Australian Family Law Act 1975, sometimes referred to as the FLA by legal practitioners, is an Act of the Australian Parliament. It is one of four separate Acts that provide the framework for family law in Australia...
. The court also decided several cases relating to the historic 1974 joint sitting
Joint Sitting, Australian parliament, 1974
A joint sitting of the Australian parliament was convened in 1974, in which members of the Senate and House of Representatives sat together as a single legislative body...
of the Parliament of Australia, including Cormack v Cope (1974) and the Petroleum and Minerals Authority case (1975).
The Barwick court decided several infamous cases on tax avoidance and tax evasion
Tax avoidance and tax evasion
Tax noncompliance describes a range of activities that are unfavorable to a state's tax system. These include tax avoidance, which refers to reducing taxes by legal means, and tax evasion which refers to the criminal non-payment of tax liabilities....
, almost always deciding against the taxation office. Led by Barwick himself in most judgments, the court distinguished between avoidance (legitimately minimising one's tax obligations) and evasion (illegally evading obligations). The decisions effectively nullified the anti-avoidance legislation, and led to the proliferation of avoidance schemes in the 1970s, a result which drew much criticism upon the court.
Gibbs court
Harry Gibbs
Sir Harry Talbot Gibbs, GCMG, AC, KBE, QC was Chief Justice of the High Court of Australia from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981...
was appointed as Chief Justice in 1981. Under his leadership, the court moved away from the legalism and conservative traditions which had characterised the Dixon and Barwick courts.
The Gibbs court made several important decisions in Australian constitutional law
Australian constitutional law
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....
. It allowed the Federal Parliament to make very wide use of the external affairs power
Section 51(xxix) of the Australian Constitution
Section 51 of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs"....
, by holding that this power could be used to implement treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
into domestic law with very few justiciable limits. In Koowarta v Bjelke-Petersen
Koowarta v Bjelke-Petersen
Koowarta v Bjelke-Petersen was a significant court case decided in the High Court of Australia on 11 May 1982. It concerned the constitutional validity of parts of the Racial Discrimination Act 1975, and the discriminatory acts of the Government of Queensland in blocking the purchase of land by...
(1982) four judges to three upheld the validity of the Racial Discrimination Act 1975
Racial Discrimination Act 1975
The Racial Discrimination Act 1975 is a statute passed by the Australian Parliament during the Prime Ministership of Labor Gough Whitlam....
, although no single view had majority support. However, in the Tasmanian Dams case
Commonwealth v Tasmania
Commonwealth v Tasmania 158 CLR 1, was a significant Australian court case, decided in the High Court of Australia on 1 July 1983. The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia...
(1983), a majority of the court upheld federal environmental legislation under the power.
The court also adopted a more expansive interpretation of the corporations power
Section 51(xx) of the Australian Constitution
Section 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
. In the Actors Equity case (1982), the court upheld regulations which, although they did not directly regulate corporation
Corporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
s, indirectly protected corporations. In the Tasmanian Dams case, the court indicated that it would interpret the power to uphold legislation regulating the non-trading activities of corporations, although it did not decide the case on that basis. The external affairs power and the corporations power have both been increasingly relied on by the federal government to extend its authority in recent years.
In administrative law
Australian administrative law
Australian administrative law define the extent of the powers and responsibilities held by administrative agencies of the Australian government. It is a common law system, with a highly significant statutory overlay that has shifted focus to generalist tribunals and codified judicial...
, the court expanded on the doctrines of natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
and procedural fairness
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
in Kioa v West
Kioa v West
Kioa v West [1985] HCA 81; 159 CLR 550, was a notable case decided in the High Court of Australia regarding the extent and requirements of natural justice and procedural fairness in administrative decision making.-Background:...
(1985). Although Gibbs himself dissented on those points, he did decide that executive decision makers were obliged to take humanitarian
Humanitarianism
In its most general form, humanitarianism is an ethic of kindness, benevolence and sympathy extended universally and impartially to all human beings. Humanitarianism has been an evolving concept historically but universality is a common element in its evolution...
principles into consideration. Outside of specific areas of law, the court was also involved in several cases of public significance, including the Chamberlain case (1984), concerning Lindy Chamberlain
Lindy Chamberlain
Alice Lynne Chamberlain-Creighton was at the centre of one of Australia's most publicised murder trials, in which she was convicted of killing her baby daughter, Azaria. The conviction was later overturned.-Early life:...
, and A v Hayden (1984), concerning the botched ASIS
Australian Secret Intelligence Service
The Australian Secret Intelligence Service is the Australian government intelligence agency responsible for collecting foreign intelligence, undertaking counter-intelligence activities and cooperation with other intelligence agencies overseas...
exercise at the Sheraton Hotel in Melbourne.
Mason court
Michael McHugh
Michael Hudson McHugh, AC, QC is a former justice of the High Court of Australia; the highest court in the Australian court hierarchy.-Judicial Activity:...
after Sir Ronald Wilson
Ronald Wilson
Sir Ronald Darling Wilson, AC, KBE, CMG, QC was a distinguished Australian lawyer, judge and social activist serving on the High Court of Australia between 1979 and 1989 and as the President of the Human Rights and Equal Opportunity Commission between 1990 and 1997.Wilson is probably best known as...
's retirement. The court under Mason was widely regarded as the most liberal bench in the court's history.
The Mason court made many important decisions in all areas of Australian law. One of its first major cases was Cole v Whitfield
Cole v Whitfield
Cole v Whitfield 165 CLR 360; [1988] HCA 18 was a landmark High Court of Australia decision where the Court overruled the long-held notion that the words "absolutely free" in Section 92 of the Australian Constitution protected a personal individual right of freedom in interstate trade. It was...
(1988), concerning the troublesome section 92 of the Australian Constitution, which had been interpreted inconsistently and confusingly since the beginning of the court. For the first time, the court referred to historical materials such as the debates of the Constitutional Conventions
Constitutional Convention (Australia)
In Australian history, the term Constitutional Convention refers to four distinct gatherings.-1891 convention:The 1891 Constitutional Convention was held in Sydney in March 1891 to consider a draft Constitution for the proposed federation of the British colonies in Australia and New Zealand. There...
in order to ascertain the purpose of the section, and the unanimous decision indicated "a willingness to overturn established doctrines and precedents perceived to be no longer working", a trend which typified the Mason court.
The most popularly significant case decided by the Mason court was the Mabo case (1992), in which the court found that the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
was capable of recognising native title
Native title
Native title is the Australian version of the common law doctrine of aboriginal title.Native title is "the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs"...
. The decision was one of the High Court's most controversial of all time, and represented the tendency of the Mason court to receive "high praise and stringent criticism in equal measure." Other controversial cases included the War Crimes Act case
Polyukhovich v Commonwealth
Polyukovich v The Commonwealth [1991] HCA 32; 172 CLR 501, commonly referred to as the War Crimes Act Case, was a significant case decided in the High Court of Australia regarding the scope of the external affairs power in section 51 of the Constitution and the judicial power of the...
(1991), regarding the validity of the War Crimes Act 1945; Dietrich v The Queen
Dietrich v The Queen
Dietrich v The Queen was an important case decided in the High Court of Australia on 13 November 1992. It concerned the nature of the right to a fair trial, and under what circumstances indigent defendants should be provided with legal aid by the state...
(1992), in which the court found that a lack of legal representation in a serious criminal case can result in an unfair trial; Sykes v Cleary (1992), regarding the disputed election of Phil Cleary
Phil Cleary
Philip Ronald Cleary is an Australian commentator on politics and sport, particularly Australian rules football, and a former independent politician elected at the 1992 Wills by-election.-Football playing career:...
; and Teoh's case
Minister of State for Immigration and Ethnic Affairs v Teoh
Minister of State for Immigration and Ethnic Affairs v Teoh was an Australian court case which was decided by the High Court of Australia on April 7, 1995...
(1995), in which the court held that ratification
Ratification
Ratification is a principal's approval of an act of its agent where the agent lacked authority to legally bind the principal. The term applies to private contract law, international treaties, and constitutionals in federations such as the United States and Canada.- Private law :In contract law, the...
of a treaty by the executive could create a legitimate expectation that members of the executive would act in accordance with that treaty.
The court developed the concept of implied human rights in the Constitution, in cases such as Australian Capital Television Pty Ltd v Commonwealth
Australian Capital Television Pty Ltd v Commonwealth
Australian Capital Television v Commonwealth 177 CLR 106 was a significant court case decided in the High Court of Australia on 30 September 1992...
(1992), Nationwide News v Wills (1992) and Theophanous v Herald and Weekly Times (1994), in which the court recognised an implied freedom of political communication arising from the nature of the Constitution in laying out a system of representative government.
In other areas of law, the court developed doctrines of equity in relation to commercial law and contract law
Australian contract law
Australian contract law is based on the inherited English contract law, with specific statutory modifications of principles in some areas. Australian law has developed through the decisions of Australian courts, especially since the 1980s, and various pieces of legislation passed by the Parliament...
, in cases such as Waltons Stores v Maher (1988) and Trident General Insurance v McNiece (1988), and made significant developments in tort law
Australian tort law
Tort law in Australia is the body of precedents and, to a lesser extent, legislation, that together define the operation of tort law in Australia. A tort is a civil wrong, other than a breach of contract. Tort law is a way in which the law can interfere with relationships between private...
, in cases such as Rogers v Whitaker (1992) and Burnie Port Authority v General Jones (1994).
Brennan court
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....
succeeded Mason in 1995. In contrast to the previous court, the Brennan court had many changes in its membership despite being only three years long. The court decided many significant cases.
In Ha v New South Wales
Ha v New South Wales
Ha v New South Wales 189 CLR 465 is a High Court of Australia case that dealt with section 90 of the Australian Constitution, which prohibits States from levying excise.-Facts:...
(1997) the court invalidated a New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
tobacco
Tobacco
Tobacco is an agricultural product processed from the leaves of plants in the genus Nicotiana. It can be consumed, used as a pesticide and, in the form of nicotine tartrate, used in some medicines...
licensing scheme, reining in the licensing scheme exception to the prohibition states levying excise
Excise
Excise tax in the United States is a indirect tax on listed items. Excise taxes can be and are made by federal, state and local governments and are far from uniform throughout the United States...
duties, contained in section 90 of the Australian Constitution. While it did not overturn previous cases in which schemes had been upheld, it did emphasise that the states could not stray too far from the constitutional framework.
The Brennan court made a number of significant decisions in relation to the judiciary of Australia
Judiciary of Australia
The judiciary in Australia is modelled substantially on the system of courts which existed in England.The large number of courts and tribunals in Australia have different procedural powers and characteristics, different jurisdictional limits, different remedial powers and different cost...
. In Grollo v Palmer (1995) and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1998), the court developed the persona designata
Persona designata
The persona designata doctrine is a doctrine in law, particularly in Canadian and Australian constitutional law which states that, although it is generally impermissible for a federal judge to exercise non-judicial power, it is permissible for a judge to do so if the power has been conferred on the...
doctrine, and in Kable v DPP (1997), the court rejected attempts by the Parliament of New South Wales
Parliament of New South Wales
The Parliament of New South Wales, located in Parliament House on Macquarie Street, Sydney, is the main legislative body in the Australian state of New South Wales . It is a bicameral parliament elected by the people of the state in general elections. The parliament shares law making powers with...
to establish a system of preventative detention, and found that the states do not have unlimited ability to regulate their courts, given the place of the courts in the Australian court hierarchy
Australian court hierarchy
There are two streams within the hierarchy of Australian courts, the federal stream and the state and territory stream. While the federal courts and the court systems in each state and territory are separate, the High Court of Australia remains the ultimate court of appeal for the Australian...
.
The court decided several cases relating to the implied freedom of political communication developed by the Mason court, notably Lange v Australian Broadcasting Corporation
Lange v Australian Broadcasting Corporation
Lange v Australian Broadcasting Corporation 189 CLR 520 is a High Court of Australia case that deals with the implied freedom of political communication in the Australian Constitution.-Background:...
(1997) and Levy v Victoria (1997). It also decided several native title cases, including the controversial Wik case
Wik Peoples v Queensland
Wik Peoples v The State of Queensland is a decision of the High Court of Australia delivered on 23 December 1996 on whether statutory leases extinguish native title rights. The court found that the statutory pastoral leases under consideration by the court did not bestow rights of exclusive...
(1996).
Gleeson court
Murray GleesonMurray Gleeson
Anthony Murray Gleeson AC QC is a former Chief Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:Gleeson was born in Wingham, New South Wales, the eldest of four children...
(the first Chief Justice not to be knighted) was appointed Chief Justice in 1998. The court under Gleeson's leadership was generally regarded as more conservative than under Mason or Brennan, favouring legalism in the tradition of the Dixon and Barwick courts. In many cases the Gleeson court focused heavily on the text itself when interpreting the Constitution or a particular statute. In the Cross-vesting case
Re Wakim; Ex parte McNally
Re Wakim; Ex parte McNally was a significant case decided in the High Court of Australia on 17 June 1999. The case concerned the constitutional validity of cross-vesting of jurisdiction, in particular, the vesting of state companies law jurisdiction in the Federal Court.-Background:As part of the...
(1999), the court struck down legislation vesting certain areas of federal jurisdiction in the Supreme Courts of the states. In Al-Kateb v Godwin
Al-Kateb v Godwin
Al-Kateb v Godwin was a decision of the High Court of Australia, which ruled on 6 August 2004 that the indefinite detention of a stateless person was lawful. The case concerned Ahmed Al-Kateb, a Palestinian man born in Kuwait, who moved to Australia in 2000 and applied for a temporary protection visa...
(2004) a majority of the court applied a narrow interpretation of the Migration Act 1958, finding that it permitted executively
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
-imposed indefinite detention of stateless persons.
However, the court did not entirely shy away from principle and public policy in its decisions. In Egan v Willis (1998), the court supported the New South Wales Legislative Council
New South Wales Legislative Council
The New South Wales Legislative Council, or upper house, is one of the two chambers of the parliament of New South Wales in Australia. The other is the Legislative Assembly. Both sit at Parliament House in the state capital, Sydney. The Assembly is referred to as the lower house and the Council as...
's ability to suspend the Treasurer when he failed to produce documents before the Council, emphasising the purpose of the ability in facilitating responsible government
Responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability which is the foundation of the Westminster system of parliamentary democracy...
. In Sue v Hill
Sue v Hill
Sue v Hill was an Australian court case decided in the High Court of Australia on 23 June 1999. It concerned a dispute over the apparent return of a candidate, Heather Hill, to the Australian Senate in the 1998 federal election...
(1999), the court recognised Australia's emergence as a sovereign independent nation, finding that the United Kingdom was a "foreign power".
The Gleeson court decided a number of important native title cases, including Yanner v Eaton (1999), Western Australia v Ward (2002) and the Yorta Yorta case (2002). In tort law
Australian tort law
Tort law in Australia is the body of precedents and, to a lesser extent, legislation, that together define the operation of tort law in Australia. A tort is a civil wrong, other than a breach of contract. Tort law is a way in which the law can interfere with relationships between private...
, the court's significant decisions include Perre v Apand Pty Ltd (1999), concerning negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
actions where there is only pure economic loss as opposed to physical or mental injury, Dow Jones v Gutnick
Dow Jones & Co. Inc. v Gutnick
Dow Jones & Co. Inc. v Gutnick was an Internet defamation case heard in the High Court of Australia, decided on 10 December 2002. The 28 October 2000 edition of Barron's Online, published by Dow Jones, contained an article entitled "Unholy Gains" in which several references were made to the...
(2002), regarding defamation on the Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
, and Cattanach v Melchior
Cattanach v Melchior
Cattanach v Melchior [2003] HCA 38; 215 CLR 1, was a significant case decided in the High Court of Australia regarding the tort of negligence in a medical context...
(2003), a wrongful life
Wrongful life
Wrongful life is the name given to a legal action in which someone is sued by a severely disabled child for failing to prevent the child's birth....
case involving a healthy child. In criminal law
Australian criminal law
The criminal law of Australia generally administered by individual jurisdictions in the Commonwealth of Australia. These jurisdictions include the six states, the Commonwealth, and the self-governing territories...
, the court in R v Tang (2008) upheld slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
convictions against the owner of a brothel who had held several women in debt bondage
Debt bondage
Debt bondage is when a person pledges him or herself against a loan. In debt bondage, the services required to repay the debt may be undefined, and the services' duration may be undefined...
after they had been trafficked
Human trafficking
Human trafficking is the illegal trade of human beings for the purposes of reproductive slavery, commercial sexual exploitation, forced labor, or a modern-day form of slavery...
to Australia.
Perhaps the Gleeson court's most significant case was amongst its later ones. In the WorkChoices case
New South Wales v Commonwealth (Workplace Relations Challenge)
In New South Wales & Ors v Commonwealth, a majority of the High Court of Australia held that the federal government's WorkChoices legislation was a valid exercise of constitutional power...
(2006), in which the court finally explicitly accepted a wide reading of the corporations power
Section 51(xx) of the Australian Constitution
Section 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
, after years of gradual expansion following the Concrete Pipes case
Strickland v Rocla Concrete Pipes Ltd
Strickland v Rocla Concrete Pipes Ltd 124 CLR 468, also known as the Concrete Pipes Case, is a High Court of Australia case that discusses the scope of the corporations power in section 51 of the Australian Constitution...
(1971).
French court
The present Chief Justice of Australia, Robert FrenchRobert French
Robert Shenton French, AC is Chief Justice of the High Court of Australia, the highest court in the Australian court hierarchy....
, was appointed in September 2008. The first decision handed down by the French Court was Lujans v Yarrabee Coal Company Pty Ltd (2008), a case dealing with a motor vehicle accident. One of the most notable judgments handed down by the French Court was Pape v Commissioner of Taxation
Pape v Commissioner of Taxation
Pape v Commissioner of Taxation is an Australian court case concerning the constitutional validity of the Tax Bonus for Working Australians Act 2009 which seeks to give one-off payments of up to $900 to Australian taxpayers...
(2009), a Constitutional law case concerning the existence of the Commonwealth's so-called "appropriation power", and the scope of its executive and taxation powers.
Composition of the court
The High Court of Australia is composed of seven Justices: the Chief Justice of AustraliaChief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...
and six other (puisne
Puisne
Puisne is a legal term of art used mainly in British English meaning "inferior in rank." It is pronounced like the word puny, and the word, so spelled, has become an ordinary adjective meaning weak or undersized.The judges and barons of the common law courts at...
) Justices. The current Justices are:
| Name | State | Date appointed | Mandatory retirement | Appointing Governor-General | Prime Minister at time of appointment | Previous judicial posting | Law school |
|---|---|---|---|---|---|---|---|
| Chief Justice Robert French Robert French Robert Shenton French, AC is Chief Justice of the High Court of Australia, the highest court in the Australian court hierarchy.... |
Western Australia Western Australia Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east... |
1 September 2008 | 19 March 2017 | Michael Jeffery Michael Jeffery Major General Philip Michael Jeffery AC, CVO, MC was the 24th Governor-General of Australia , the first Australian career soldier to be appointed governor-general... |
Kevin Rudd Kevin Rudd Kevin Michael Rudd is an Australian politician who was the 26th Prime Minister of Australia from 2007 to 2010. He has been Minister for Foreign Affairs since 2010... (Labor Australian Labor Party The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia... ) |
Federal Court of Australia Federal Court of Australia The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges... |
University of Western Australia University of Western Australia The University of Western Australia was established by an Act of the Western Australian Parliament in February 1911, and began teaching students for the first time in 1913. It is the oldest university in the state of Western Australia and the only university in the state to be a member of the... |
| Justice William Gummow William Gummow William Montague Charles Gummow AC is a Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:... |
New South Wales New South Wales New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales... |
21 April 1995 | Bill Hayden Bill Hayden William George "Bill" Hayden AC was the 21st Governor-General of Australia. Prior to this, he represented the Australian Labor Party in parliament; he was a minister in the government of Gough Whitlam, and later became Leader of the Opposition, narrowly losing the 1980 federal election to the... |
Paul Keating Paul Keating Paul John Keating was the 24th Prime Minister of Australia, serving from 1991 to 1996. Keating was elected as the federal Labor member for Blaxland in 1969 and came to prominence as the reformist treasurer of the Hawke Labor government, which came to power at the 1983 election... (Labor Australian Labor Party The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia... ) |
Federal Court of Australia Federal Court of Australia The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges... |
University of Sydney University of Sydney The University of Sydney is a public university located in Sydney, New South Wales. The main campus spreads across the suburbs of Camperdown and Darlington on the southwestern outskirts of the Sydney CBD. Founded in 1850, it is the oldest university in Australia and Oceania... |
|
| Justice Kenneth Hayne Kenneth Hayne Kenneth Madison Hayne AC is a Justice of the High Court of Australia which is the highest court in the Australian court hierarchy.-Education and professional life:... |
Victoria Victoria (Australia) Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively.... |
5 June 2015 | Sir William Deane William Deane Sir William Patrick Deane, AC, KBE, QC , Australian judge and the 22nd Governor-General of Australia.-Early life:William Deane was born in Melbourne, Victoria. He was educated at Catholic schools including St. Joseph's College, Hunters Hill and at the University of Sydney, where he graduated in... |
John Howard John Howard John Winston Howard AC, SSI, was the 25th Prime Minister of Australia, from 11 March 1996 to 3 December 2007. He was the second-longest serving Australian Prime Minister after Sir Robert Menzies.... (Liberal Liberal Party of Australia The Liberal Party of Australia is an Australian political party.Founded a year after the 1943 federal election to replace the United Australia Party, the centre-right Liberal Party typically competes with the centre-left Australian Labor Party for political office... ) |
Supreme Court of Victoria Supreme Court of Victoria The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state... |
University of Melbourne University of Melbourne The University of Melbourne is a public university located in Melbourne, Victoria. Founded in 1853, it is the second oldest university in Australia and the oldest in Victoria... ; University of Oxford University of Oxford The University of Oxford is a university located in Oxford, United Kingdom. It is the second-oldest surviving university in the world and the oldest in the English-speaking world. Although its exact date of foundation is unclear, there is evidence of teaching as far back as 1096... |
|
| Justice Dyson Heydon Dyson Heydon John Dyson Heydon AC QC is a Justice of the High Court of Australia; the highest court in the Australian court hierarchy.-Education:... |
New South Wales New South Wales New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales... |
1 February 2003 | 1 March 2013 | Peter Hollingworth Peter Hollingworth Peter John Hollingworth AC, OBE is an Australian Anglican bishop. He served as the Archbishop of Brisbane for 11 years before becoming the 23rd Governor-General of Australia from 2001 until 2003.... |
John Howard John Howard John Winston Howard AC, SSI, was the 25th Prime Minister of Australia, from 11 March 1996 to 3 December 2007. He was the second-longest serving Australian Prime Minister after Sir Robert Menzies.... (Liberal Liberal Party of Australia The Liberal Party of Australia is an Australian political party.Founded a year after the 1943 federal election to replace the United Australia Party, the centre-right Liberal Party typically competes with the centre-left Australian Labor Party for political office... ) |
Supreme Court of New South Wales Supreme Court of New South Wales The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales... |
University of Oxford University of Oxford The University of Oxford is a university located in Oxford, United Kingdom. It is the second-oldest surviving university in the world and the oldest in the English-speaking world. Although its exact date of foundation is unclear, there is evidence of teaching as far back as 1096... |
| Justice Susan Crennan Susan Crennan Susan Maree Crennan AC , is an Australian judge, a Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:... |
Victoria Victoria (Australia) Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively.... |
1 November 2005 | 1 July 2015 | Michael Jeffery Michael Jeffery Major General Philip Michael Jeffery AC, CVO, MC was the 24th Governor-General of Australia , the first Australian career soldier to be appointed governor-general... |
John Howard John Howard John Winston Howard AC, SSI, was the 25th Prime Minister of Australia, from 11 March 1996 to 3 December 2007. He was the second-longest serving Australian Prime Minister after Sir Robert Menzies.... (Liberal Liberal Party of Australia The Liberal Party of Australia is an Australian political party.Founded a year after the 1943 federal election to replace the United Australia Party, the centre-right Liberal Party typically competes with the centre-left Australian Labor Party for political office... ) |
Federal Court of Australia Federal Court of Australia The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges... |
University of Sydney University of Sydney The University of Sydney is a public university located in Sydney, New South Wales. The main campus spreads across the suburbs of Camperdown and Darlington on the southwestern outskirts of the Sydney CBD. Founded in 1850, it is the oldest university in Australia and Oceania... ; University of Melbourne University of Melbourne The University of Melbourne is a public university located in Melbourne, Victoria. Founded in 1853, it is the second oldest university in Australia and the oldest in Victoria... |
| Justice Susan Kiefel Susan Kiefel Susan Mary Kiefel AC is a Justice of the High Court of Australia, the highest court in the Australian court hierarchy.- Early life and education :... |
Queensland Queensland Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean... |
3 September 2007 | 17 January 2024 | Michael Jeffery Michael Jeffery Major General Philip Michael Jeffery AC, CVO, MC was the 24th Governor-General of Australia , the first Australian career soldier to be appointed governor-general... |
John Howard John Howard John Winston Howard AC, SSI, was the 25th Prime Minister of Australia, from 11 March 1996 to 3 December 2007. He was the second-longest serving Australian Prime Minister after Sir Robert Menzies.... (Liberal Liberal Party of Australia The Liberal Party of Australia is an Australian political party.Founded a year after the 1943 federal election to replace the United Australia Party, the centre-right Liberal Party typically competes with the centre-left Australian Labor Party for political office... ) |
Federal Court of Australia Federal Court of Australia The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges... |
Queensland Barristers' Admission Board; University of Cambridge University of Cambridge The University of Cambridge is a public research university located in Cambridge, United Kingdom. It is the second-oldest university in both the United Kingdom and the English-speaking world , and the seventh-oldest globally... |
| Justice Virginia Bell Virginia Bell Virginia "Ding Dong" Bell is a topless model and actress. She started her career in the 1950s as a burlesque dancer.... |
New South Wales New South Wales New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales... |
3 February 2009 | 7 March 2021 | Quentin Bryce Quentin Bryce Quentin Bryce, AC, CVO is the 25th and current Governor-General of Australia and former Governor of Queensland.... |
Kevin Rudd Kevin Rudd Kevin Michael Rudd is an Australian politician who was the 26th Prime Minister of Australia from 2007 to 2010. He has been Minister for Foreign Affairs since 2010... (Labor Australian Labor Party The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia... ) |
Supreme Court of New South Wales Supreme Court of New South Wales The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales... |
University of Sydney University of Sydney The University of Sydney is a public university located in Sydney, New South Wales. The main campus spreads across the suburbs of Camperdown and Darlington on the southwestern outskirts of the Sydney CBD. Founded in 1850, it is the oldest university in Australia and Oceania... |
The first three justices of the High Court were:
- Chief JusticeChief Justice of AustraliaThe Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...
, Sir Samuel GriffithSamuel GriffithSir Samuel Walker Griffith GCMG QC, was an Australian politician, Premier of Queensland, Chief Justice of the High Court of Australia and a principal author of the Constitution of Australia.-Early life:... - Justice Sir Edmund BartonEdmund BartonSir Edmund Barton, GCMG, KC , Australian politician and judge, was the first Prime Minister of Australia and a founding justice of the High Court of Australia....
- Justice Richard Edward O'Connor
There were a number of possible candidates for the first bench of the High Court. In addition to the eventual appointees, Griffith, Barton and O'Connor, names which had been mentioned in the press included two future Justices of the court, Henry Higgins and Isaac Isaacs
Isaac Isaacs
Sir Isaac Alfred Isaacs GCB GCMG KC was an Australian judge and politician, was the third Chief Justice of Australia, ninth Governor-General of Australia and the first born in Australia to occupy that post. He is the only person ever to have held both positions of Chief Justice of Australia and...
, along with Andrew Inglis Clark
Andrew Inglis Clark
Andrew Inglis Clark was an Australian barrister, politician, electoral reformer and jurist. He initially qualified engineer, however he re-trained as a barrister in order to effectively fight for social causes which deeply concerned him...
, Sir John Downer
John Downer
Sir John William Downer, KCMG was the Premier of South Australia from 16 June 1885 until 11 June 1887 and again from 1892 to 1893. He was the first of three Australian politicians from the Downer family dynasty.-Early life:...
, Sir Josiah Symon
Josiah Symon
Hon Sir Josiah Henry Symon KCMG , Scottish-Australian lawyer and politician, was a member of the Australian Senate in the First Australian Parliament, and an Attorney-General of Australia.-Biography:...
and George Wise
George Wise
George Henry Wise was an Australian politician and solicitor.Wise was born in Melbourne and educated at Scotch College from five years of age to he matriculated in 1868. He became an articled clerk and was admitted to the bar in September 1874 and set up his own practice in 1877 in Sale...
. (Crucially, all of the above had previously served as politicians, with only Griffith and Inglis Clark possessing both political and judicial experience). Barton and O'Connor were both members of the federal parliament, and both from the government benches; indeed Barton was Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
. Each of the eventual appointees had participated in the drafting of the Constitution, and had intimate knowledge of it. All three were described as conservative, and their jurisprudence was very much influenced by English law, and in relation to the Constitution, by United States law.
In 1906, at the request of the Justices, two more seats were added to the bench, with Isaacs and Higgins the appointees. After O'Connor's death in 1912, an amendment to the Judiciary Act 1903
Judiciary Act 1903
The Judiciary Act 1903 regulates the structure of the Australian judicial system and invests federal Australian courts with jurisdiction. Its passage, on 25 August 1903, established the High Court of Australia...
expanded the bench to seven. For most of 1930 two seats were left vacant, due to monetary constraints placed on the court by the Depression. The economic downturn had also led to a reduction in litigation, and consequently less work for the court. After Sir Isaac Isaacs retired in 1931, his seat was left empty, and in 1933 an amendment to the Judiciary Act officially reduced the number of seats to six. However, this led to some decisions being split three-all. With the appointment of William Webb in 1946, the number of seats returned to seven, and since then the court has had a full complement of seven Justices. there have been 46 Justices, eleven of whom have been Chief Justice
Chief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...
. Current Justices Susan Crennan
Susan Crennan
Susan Maree Crennan AC , is an Australian judge, a Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:...
and Susan Kiefel
Susan Kiefel
Susan Mary Kiefel AC is a Justice of the High Court of Australia, the highest court in the Australian court hierarchy.- Early life and education :...
are the second and third women to sit on the bench, after Justice Mary Gaudron
Mary Gaudron
Mary Genevieve Gaudron, AC, QC , Australian lawyer and judge, was the first female Justice of the High Court of Australia.-Youth:...
. With Virginia Bell
Virginia Bell
Virginia "Ding Dong" Bell is a topless model and actress. She started her career in the 1950s as a burlesque dancer....
having taken office in February 2009, there are three women sitting concurrently on the bench, alongside four men.
More than half of the Justices, twenty-four, have been residents of New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
(with twenty-three of these graduates of Sydney Law School
Sydney Law School
Sydney Law School is the law faculty of the University of Sydney and is regarded as one of the most prestigious institutions of legal education in Australia and the Asia Pacific. Located in the main Camperdown campus of the University, with some operations at the St...
). Thirteen were from Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
, six from Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
and three from Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
. No Justices have been residents of South Australia
South Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
or Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
, or any of the territories. The majority of the justices have been from Protestant backgrounds, with a smaller number from Catholic
Catholic
The word catholic comes from the Greek phrase , meaning "on the whole," "according to the whole" or "in general", and is a combination of the Greek words meaning "about" and meaning "whole"...
backgrounds. Sir Isaac Isaacs
Isaac Isaacs
Sir Isaac Alfred Isaacs GCB GCMG KC was an Australian judge and politician, was the third Chief Justice of Australia, ninth Governor-General of Australia and the first born in Australia to occupy that post. He is the only person ever to have held both positions of Chief Justice of Australia and...
was of Polish/Jewish background, the only representative of any other faith. He also remains the only High Court Justice from a non Anglo-Celtic
Anglo-Celtic
Anglo-Celtic is a term used to describe people of British and Irish descent. The term today is mainly used outside of Britain and Ireland, particularly in Australia but also in Canada, New Zealand and the United States, where a significant diaspora is located....
background. Michael Kirby was the first openly gay justice in the history of the Court; his replacement Virginia Bell
Virginia Bell
Virginia "Ding Dong" Bell is a topless model and actress. She started her career in the 1950s as a burlesque dancer....
is the first lesbian, who has been an active campaigner for gay and lesbian rights and was one of the participants in the first Sydney Gay and Lesbian Mardi Gras
Sydney Gay and Lesbian Mardi Gras
The Sydney Mardi Gras is an annual LGBTQI pride parade and festival in Sydney, Australia, and draws in thousands of visitors from around Australia and overseas...
in 1978.
Almost every single judge on the High Court has taken silk as a QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
or KC before appointment. The exceptions are: Justice Sir Hayden Starke
Hayden Starke
Sir Hayden Erskine Starke KCMG , an Australian judge, was a justice of the High Court of Australia.Starke was born in the town of Creswick, Victoria in 1871...
(although he refused to take silk), Justices Sir Edward McTiernan
Edward McTiernan
Sir Edward Aloysius McTiernan, KBE , was an Australian jurist, lawyer and politician. He served as an Australian Labor Party member of both the New South Wales Legislative Assembly and federal House of Representatives before being appointed to the High Court of Australia in 1930...
, Sir William Webb, Sir Cyril Walsh
Cyril Walsh
Sir Cyril Ambrose Walsh KBE , Australian judge, was a Justice of the High Court of Australia.Walsh was born in Sydney, New South Wales, the son of Michael and Mary Walsh. He grew up in the western suburb of Werrington, where his father owned a dairy farm...
, Michael Kirby and now Chief Justice Robert French
Robert French
Robert Shenton French, AC is Chief Justice of the High Court of Australia, the highest court in the Australian court hierarchy....
.
Since the retirement of Ian Callinan
Ian Callinan
Ian David Francis Callinan, AC, QC is a former Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Education:...
in 2007, every justice of the High Court, for the first time in its history, has had prior judicial experience (serving on state Supreme Courts or the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
. Although 13 justices of the Court had previously served in state, colonial or federal Parliaments, no parliamentarian has been appointed to the Court since Lionel Murphy
Lionel Murphy
Lionel Keith Murphy, QC was an Australian politician and jurist who served as Attorney-General in the government of Gough Whitlam and as a Justice of the High Court of Australia from 1975 until his death.- Personal life :...
's appointment in 1975.
Appointment process
Appointments are officially made by the Governor-General in CouncilGovernor-General of Australia
The Governor-General of the Commonwealth of Australia is the representative in Australia at federal/national level of the Australian monarch . He or she exercises the supreme executive power of the Commonwealth...
. In practice, appointees are nominated by the Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
, on advice from the Cabinet, particularly from the Attorney-General of Australia
Attorney-General of Australia
The Attorney-General of Australia is the first law officer of the Crown, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but there is no constitutional requirement that this be the case since the...
. For example, four Justices were appointed while Andrew Fisher
Andrew Fisher
Andrew Fisher was an Australian politician who served as the fifth Prime Minister on three separate occasions. Fisher's 1910-13 Labor ministry completed a vast legislative programme which made him, along with Protectionist Alfred Deakin, the founder of the statutory structure of the new nation...
was Prime Minister, but it was largely on Attorney-General Billy Hughes
Billy Hughes
William Morris "Billy" Hughes, CH, KC, MHR , Australian politician, was the seventh Prime Minister of Australia from 1915 to 1923....
' authority that the candidates were chosen. Since 1979, the Attorney-General has been required by section 6 of the High Court of Australia Act 1979 to consult with the Attorneys-General of the states and territories of Australia
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
about appointments to the court. The process was first used in relation to the appointment of Justice Wilson
Ronald Wilson
Sir Ronald Darling Wilson, AC, KBE, CMG, QC was a distinguished Australian lawyer, judge and social activist serving on the High Court of Australia between 1979 and 1989 and as the President of the Human Rights and Equal Opportunity Commission between 1990 and 1997.Wilson is probably best known as...
, and has been generally successful, despite the occasional criticism that the states merely have a consultative, rather than a determinative, role in the selection process.
There are no qualifications for Justices in the Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
(other than that they must be under the retirement age of 70). The High Court of Australia Act requires that appointees have been a judge of a federal, state or territory court
Australian court hierarchy
There are two streams within the hierarchy of Australian courts, the federal stream and the state and territory stream. While the federal courts and the court systems in each state and territory are separate, the High Court of Australia remains the ultimate court of appeal for the Australian...
, or that they have been enrolled as a legal practitioner for at least five years, with either the High Court itself or with a state or territory Supreme Court. There are no other formal requirements.
The appointment process stands in stark contrast with the highly public selection and confirmation process for justices of the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
. While there are people who are critical of the secrecy of the process, and who advocate a more public method for appointments, there are relatively few who dispute the quality of appointees. Although three of the Chief Justices (Sir Adrian Knox
Adrian Knox
Sir Adrian Knox KCMG, KC , Australian judge, was the second Chief Justice of the High Court of Australia, sitting on the bench of the High Court from 1919 to 1930.-Education:...
, Sir John Latham
John Latham (Australian jurist)
Sir John Greig Latham GCMG QC was an Australian judge and politician who served as fifth Chief Justice of the High Court of Australia for seventeen years, from 1935 to 1952.-Biography:...
and Sir Garfield Barwick
Garfield Barwick
Sir Garfield Edward John Barwick, was the Attorney-General of Australia , Minister for External Affairs and the seventh and longest serving Chief Justice of Australia...
) were conservative politicians at the time of their appointment, and were appointed by conservative governments, their political views are not considered to have interfered with their performance on the court, and their talent is rarely questioned. However, there is frequent criticism of Barwick's intervention in the 1975 Australian constitutional crisis, when he gave advice to Governor-General
Governor-General of Australia
The Governor-General of the Commonwealth of Australia is the representative in Australia at federal/national level of the Australian monarch . He or she exercises the supreme executive power of the Commonwealth...
Sir John Kerr. On the other side of politics, Labor
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
politicians H. V. Evatt
H. V. Evatt
Herbert Vere Evatt, QC KStJ , was an Australian jurist, politician and writer. He was President of the United Nations General Assembly in 1948–49 and helped draft the United Nations Universal Declaration of Human Rights...
, Sir Edward McTiernan
Edward McTiernan
Sir Edward Aloysius McTiernan, KBE , was an Australian jurist, lawyer and politician. He served as an Australian Labor Party member of both the New South Wales Legislative Assembly and federal House of Representatives before being appointed to the High Court of Australia in 1930...
, and Lionel Murphy
Lionel Murphy
Lionel Keith Murphy, QC was an Australian politician and jurist who served as Attorney-General in the government of Gough Whitlam and as a Justice of the High Court of Australia from 1975 until his death.- Personal life :...
were also appointed to the High Court; Murphy's appointment was controversial at the time and his reputation was gravely damaged in 1985 by charges that he had attempted to pervert the course of justice, although he was eventually acquitted.
See also
- Australian court hierarchyAustralian court hierarchyThere are two streams within the hierarchy of Australian courts, the federal stream and the state and territory stream. While the federal courts and the court systems in each state and territory are separate, the High Court of Australia remains the ultimate court of appeal for the Australian...
- Judiciary Act 1903Judiciary Act 1903The Judiciary Act 1903 regulates the structure of the Australian judicial system and invests federal Australian courts with jurisdiction. Its passage, on 25 August 1903, established the High Court of Australia...
- Judiciary of AustraliaJudiciary of AustraliaThe judiciary in Australia is modelled substantially on the system of courts which existed in England.The large number of courts and tribunals in Australia have different procedural powers and characteristics, different jurisdictional limits, different remedial powers and different cost...
- Law of AustraliaLaw of AustraliaThe law of Australia consists of the Australian common law , federal laws enacted by the Parliament of Australia, and laws enacted by the Parliaments of the Australian states and territories...
- List of High Court of Australia cases
- List of Justices of the High Court of Australia
- List of Justices of the High Court of Australia by time in office
- List of Chief Justices of Australia by time in office
- Sir Samuel Griffith
- Sir Edmund Barton
- United States Supreme Court
Further reading
- Sarah Burnside (2011), "Australian Judicial Biography: Past, Present and Future", 57 Australian Journal of Politics & History 221-244.
- Graham Fricke (1986), Judges of the High Court, Hutchinson of Australia, Hawthorn (Victoria).
External links
- Official High Court of Australia website
- The Highest Court Documentary film. Only film ever permitted to be made in the High Court.